Does aggressive litigation have a target on its back?
As I approach another anniversary of practice in commercial litigation, I have been reflecting on both the changes and constants in the practice of litigation.
Litigation is conducted within an adversarial system and it is perhaps therefore unsurprising that among a solicitor's most sought after attributes is 'a willingness to be aggressive'. When I began practising, a number of firms of solicitors and individual solicitors had well-established and well-promoted reputations for aggressiveness. Descriptions such as 'rottweilers' 'pit-bulls' and 'street fighters' were prominent on law-firm websites and legal directory profiles. Whilst it is now uncommon to see solicitors promote themselves in this way (at least in writing), aggressiveness does remain a characteristic sought and valued by some clients.
Being instructed to act aggressively in litigation does not give solicitors carte blanche to do so, because we must balance the conflict between our duty to act in the best interests of each client and our duties to act with independence and integrity, and to uphold the rule of law and the proper administration of justice.
The Solicitors Regulation Authority (SRA) has identified unethical behaviour and poor conduct in litigation a priority risk, given the potential harm to people and to the integrity of the justice system.
Examples of conduct which have fallen foul of the courts and SRA include:
- Threatening in a letter of claim to reveal publicly embarrassing information in the absence of settlement
- Using litigation or the threat of litigation for an improper motive, such as to silence criticism
- Threatening to make a complaint to the police or a regulator in the absence of settlement
- Seeking to prevent the reporting of offences or cooperation with a criminal investigation or other legal process, through Non-Disclosure Agreements
- Taking unfair advantage of vulnerable or unrepresented opponents, through the use of intimidatory language or the use of oppressive tactics
Some of the above conduct could expose solicitors to regulatory investigation and sanction, and even expose solicitors and clients to criminal investigation and charges (for example, blackmail and perverting the course of justice).
The courts have also made clear their disapproval of the conduct of parties and solicitors who engage in excessively aggressive litigation, and increasingly refer solicitors to the SRA where conduct that amounts to a breach by solicitors of their professional duties is identified. Clients may face adverse consequences too, including through the courts' exercise of their discretion in awarding costs against a party who acted improperly, irrespective of the outcome of the litigation.
For some organisations, conducting litigation unnecessarily aggressively may be at odds with their values, and they may not be prepared to accept the risk of reputational damage from their litigation being conducted in this way. Solicitors do not act in their clients' interests by ignoring such concerns.
It is important to have these matters in mind, whether you are a claimant or a defendant, or acting for either party. The adversarial system will ensure that aggressiveness will remain a feature of litigation to be deployed or challenged to ensure that client's interests are best served.