In civil litigation, the pre-action protocols encourage parties to exchange correspondence to, inter alia, understand each other’s position and try to settle the issues without proceedings. This is laudable – litigation should always be a last resort. However, while such correspondence may take on a wide variety of flavours, many litigants see this as an opportunity to posture and emphasise the strength of their position.
The belligerent litigant may even first seek the views of counsel on the merits of the dispute, and then deploy the favourable aspects of counsel’s advice in correspondence in the hope that this would cause the opponent to back down. Such deployment may range anywhere from an oblique reference to quoting large excerpts of the advice. Tempting as this may be, such a strategy must be approached with great caution.
You can read Joe-han Ho’s full post on our Commercial, Construction and International Arbitration Blog here.