In professional negligence cases, the preservation of a commercial relationship should be a key goal.
It is winning at all costs that matters to a litigator, surely? Actually, I disagree. With so many considerations to take into account, a ‘win’ can be far more subtle that simply a question of who pays whose damages and costs.
As a claimant professional negligence solicitor, the preservation of a commercial relationship is often at the forefront of parties’ minds. I have had numerous clients who have been incredibly reluctant to bring a formal claim against their adviser – their personal accountant, or long-standing solicitor for example – but have been left with no option if they wish to recover losses caused by their adviser’s error. Very often in those situations, the professional first exhausts all routes to try and remedy the client’s issue. Where the only recourse left is to bring a claim against the professional and invoke the cover of their professional indemnity insurer, my clients are keen to ensure that I understand the need for a working relationship to be maintained after the claim has been resolved.
Prompt admissions of liability, waiving the requirement to send a full letter of claim, and early offers of settlement all facilitate progress of the case at minimum cost. In such cases, an ‘all-guns-blazing’ approach would be wholly unsuitable and counter-productive. Working towards the same goal means that loss is compensated without damaging the trust and working relationship between the claimant and defendant, allowing them to continue their professional dealings long after the claim is a distant memory. Co-operation pays dividends in those scenarios and everyone is a winner.
Understanding a client or opponent’s broader objective can shape the approach one takes toward a particular case. For example, a defendant’s insurer may wish to avoid the setting of a precedent which will open the floodgates to a multitude of claims. In such a case, a commercial settlement may be agreed to buy-off the risk of such a situation being created. Awareness of this can ensure the case is progressed in such a way as to achieve all the parties’ objectives.
Equally, an insured may accept a claim exists but be of the view that the damages claimed far exceed the losses which ought to be properly compensated. The defendant’s intention in such a case will be to reduce the claim substantially and settle the claim within the reserve set down by the insurer. A litigator can use their emotional intelligence to read between the lines and quickly reach these conclusions, helping to shape and inform their client’s views and manage expectations. In such cases, a firm but conciliatory approach can help to quickly narrow the issues between parties so that the focus is left on the real issues which need to be tackled.
Managing one’s own emotions is a very valuable skill. Point-scoring and antagonising of an opponent in correspondence is likely to achieve very little in litigation, and is instead likely to increase stress and cause parties to become entrenched in their positions. As my former senior partner often said, sleeping on it is for the best, before hitting send on a potentially inflammatory communication. Likewise, having the ability to take a step back and look objectively at your own client’s case, to counter-act any own client bias that you may develop, is an important skill to employ particularly where you are very involved in a case. Getting this right helps manage client expectations and position yourself appropriately when considering specific issues.
I have had many clients whose professional advisers steer clear of any suggestion of wrong-doing. Admitting to a mistake is difficult, and many professionals are reluctant to do it. If a defendant therefore reacts to a claim by unreasonably denying liability and refusing to entertain further discussion or negotiation, then ultimately a robust approach is often needed. In my experience, there are often no real winners in these cases. Even where claimants go on to win damages and costs, clients feel disappointed by the defendant’s behaviour, defendant insurers are left footing a large bill of costs as a result of the defendant’s unreasonable denial of liability, and defendants are unhappy at the claim having been compromised in circumstances where they are still unable to admit any error on their part.
Ultimately, litigation these days is very much about exercising sound judgement about your client and their opponent and picking up on the underlying, sometimes unspoken aims and concerns of the parties to achieve a just resolution at proportionate cost. Sensitivity towards others is key. The role of a litigator these days is not simply to shout loudest, but to use one’s emotional intelligence and intuition to deliver the results a client is seeking. Those can get that right will succeed in exceeding their clients’ expectations at every opportunity.
Sonita Hayward is an associate solicitor in the professional negligence team at Bolt Burdon Kemp