Stephen Baister Writes On.. Aggression

Long ago, when I was a practising solicitor, litigation was often conducted much like a contact sport. If you acted for a meritorious plaintiff, you pursued his or her claim aggressively; if you acted for an unmeritorious defendant you engaged aggressively in avoidance, doing everything you could to see that the case never came to trial. (Costs were not so huge then to deter one from making applications designed to delay, and sanctions for delay were not as fierce then as they are now.)

One of the effects of the CPR was supposedly to foster a new spirit of cooperation; and to be fair, I think it worked for a bit, and litigators did moderate their behaviour; but there is a body of case law that demonstrates that some lawyers still litigate with an unnecessary degree of belligerence. Bates v The Post Office attracted attention even in the press for precisely that reason. The court remarked “that extremely aggressive litigation tactics are being used in these proceedings. This simply must stop. It is both very expensive, and entirely counter-productive, to proper resolution of what is so far an intractable dispute,” going  on to remind the parties that “litigation has to be conducted in a cooperative fashion and in accordance with the overriding objective in the CPR.” But Bates v The Post Office is far from the only case that has attracted adverse comment. In Camran Mirza & Ors v CMS Cameron McKenna Nabarro Olswang LLP the court remarked that proceedings should not be used to intimidate or harass in a way that might undermined the fairness of the proceedings. The aggressive stance adopted by the defendants in MEX Group Worldwide Limited v Stewart Owen Ford & Ors attracted adverse comment for the use of frequent and lengthy applications, extensive requests for documents and a generally combative tone in correspondence, which was contrary to “the spirit of the CPR.” Both sides in Limbu & Ors v Dyson Technology Ltd & Ors were criticised for their conduct. As in an increasing number of cases the criticism was reflected in costs.

Solicitors have a duty to act in their client's best interests and “zealously advance their case,” but, as the SRA has observed, this is not an absolute duty to be aggressive at all costs. It is  constrained by overriding obligations to the court, which include acting with integrity, not misleading the court, and not taking unfair advantage of third parties.

At Manolete we like a firm approach to litigation but do not endorse aggressive or intemperate conduct. A decent case will usually end the right way without bullying on the road.

Stephen Baister (Consultant)