Don’t write the same letter twice

In general, arguments don’t gain anything by being repeated. This is particularly true in inter-parties correspondence.

This does not prevent people writing essentially the same letter more than once. This can, and does, reach ridiculous proportions. A common bad example is respondent solicitors who send letter after letter declaiming that the claimant’s case is misconceived and that they will be seeking costs. But claimant’s can also make the same mistake – often making repeated disclosure requests for the same material, after the respondent has indicated that they are unwilling to provide it.

The strategy behind this approach appears to be that, although the first couple of letters were fruitless, when the third arrives the other side will be struck by your arguments and reverse course.

This doesn’t work.

If your first letter doesn’t work you normally have three options:

Escalation

In tribunal litigation this means going to the tribunal. If the other side is refusing to disclose documents, then ask the tribunal to order them to do so. If you believe their response is misconceived, you might want a PHR to strike part of it out.

While it is sensible to agree as much as possible with the other side, litigation is adversarial. It is the tribunal’s job to resolve matters when agreement can’t be reached.

Argument

Sometimes you can actually change the other side’s mind. It is often worth elaborating on your arguments or ringing them up to discuss things. The point is that if your original letter didn’t work, you need to try a different approach, rather than repeat the one that didn’t work.

Do nothing

Quite often the sensible approach is masterful inactivity.

Say you are discussing what the relevant issues are, and the other side wants to include something that is clearly irrelevant. It is sensible to discuss it and try to change their mind. But, in the end, you can’t stop them bringing it up and there is normally no point bringing the tribunal in at that stage. The best course is to say “I think that’s irrelevant, but if you disagree, the tribunal will have to deal with it at the hearing”. Then at the hearing put the question to the tribunal.

Similarly, sometimes you are writing to put the other side on notice of something. For example, you may need to tell them that you intend to make an application for costs. Once you have done so, it is often pointless to discuss the issue further. They are unlikely to agree that they should pay costs; you are unlikely to agree not to seek them. Of course, the situation may change, or somebody may propose a compromise. But there is no point in engaging in prolonged correspondence that boils down to ‘Oh, yes it is’ / ‘Oh, no it isn’t’ / ‘Oh, yes it is’…