If you don't read this, there could be trouble

Are improper and unethical threats from lawyers on the increase?

"Ethics" by masondan is licensed under CC BY-NC-SA 2.0.

Many years ago, I got into a silly argument with the supplier of a heating installation for my home. Something in the terms and conditions I had agreed to took me by surprise and I wasn’t happy at the extra costs they were loading on to me. This was the first home that I had bought. The purchase had only just completed and money was a little tight.

But one of the features of buying a home is that you spend weeks – or was it months? – in deep discussion with solicitors. So, when my patience snapped at the point that I realised that I couldn’t negotiate my way out of the supplier’s extra charges, I uttered the time-honoured phrase: “You’ll be hearing from my lawyers.”

As the final syllable of the sentence passed by my lips, I was overwhelmed with embarrassment at the stupidity of such a threat. I knew that I wouldn’t be discussing the matter with my solicitor. That was because I also knew that, if I did raise it, he would tell me, very tactfully, that I didn’t have a leg to stand on. That was pretty much what the supplier said to me, too. But without the tact. And if he resorted to any anatomical metaphors, it wasn’t my leg that he referred to.   

I was in my twenties at the time of the incident. Readers unfamiliar with my present age will be able to deduce that this must have been a long into the past when I tell you that, as a salaried employee, I was able to buy a home of my own less than five years into my career. But, like most moments in my life in which I have inflicted acute embarrassment on myself, I have not forgotten the incident despite the passage of time.

I’m still in touch with my solicitor from those days.  He’s still very tactful. Some others in his profession seem not to be. Faced with a hopeless case, there appears to be no shortage of solicitors who are happy to tell their clients that they will come up with some legal-sounding rubbish designed to intimidate an adversary into surrendering.

The press has given a lot of coverage to SLAPPs (Strategic lawsuits against public participation), the practice whereby wealthy individuals try to shut down criticism by threatening an unjustified defamation action against those who are writing about them. It's not surprising that the press is concerned about SLAPPs. As prolific exposers of bad behaviour, investigative journalists are often on the receiving end. Unlike a genuine claim for libel, which may be the only way to restore one’s reputation after a defamatory allegation, the primary objective of a SLAPP is to harass, intimidate and financially and psychologically exhaust one’s opponent via improper means.

But it isn’t only journalists who can find themselves on the receiving end of threats of litigation purely to gain an advantage for their clients over those who cannot afford legal fees. I have seen this behaviour up close.

Some years ago, a company I am involved with granted a lease of a small piece of land. The purchasers used the land for 13 years and then, having no further need for it, tried to sell the lease. Finding no one willing to buy it (at least not at a price they found acceptable), the purchasers asked the company to cancel the lease and refund the purchase price. When their request was rejected, they reacted like a twenty-something version of myself, threatening to instruct lawyers to initiate litigation.

But, unlike a twenty-something version of myself, they did go ahead and instruct solicitors who, unlike any lawyers I have ever retained, wrote a detailed 24-point argument which purported to be a legal analysis of the reason why their clients were entitled to have the purchase price refunded and the lease cancelled. The letter was complete nonsense, as demonstrated by the fact that, when the company refused to yield, the lessees abandoned their attempt to secure a refund.

I find it inconceivable that the solicitors genuinely believed what they wrote. Their client was from a very wealthy family (if Wikipedia is to be believed, a family worth multiple billions of pounds), whereas the company they were threatening had annual earnings of less than £5,000 pa. The aim was to intimidate.

In a separate matter, I have seen a letter from lawyers arguing that, when a landlord is deciding whether an individual resident may make physical alterations to their home, the landlord is prohibited from considering the legal rights of other tenants in the same building (including the landlord’s legal obligations to those other tenants). Utter drivel, but when it comes clothed in a threat of litigation, it makes one stop and think.  

There are regulatory codes which govern the behaviour of lawyers. Solicitors are expressly prohibited from pursuing legal action based on a case which is not “properly arguable”. A case based on the premise that a landlord is prohibited from considering its responsibilities to tenants is clearly not properly arguable.

Solicitors are also not permitted to mislead. So a solicitor telling the landlord that they have accepted instructions from their client to pursue such a claim, in the hope that the landlord will give way without the legal action being commenced, is also a breach of the regulatory code even if the litigation isn’t actually initiated. Nevertheless, I have seen just such a letter.

There are, of course, many, many lawyers who stick to the code. I have already mentioned one who has advised me well for several decades. Another is Dan Neidle, a former partner in a pre-eminent firm who now runs a not-for-profit company with a mission to improve tax and legal policy.

In 2022, Neidle wrote that the then Chancellor of the Exchequer, Nadhim Zahawi, had lied about his taxes. Zahawi’s solicitors, Osborne Clarke, threatened Neidle with a libel action. The solicitors also said that Neidle couldn’t tell anyone about their threat; it would be “improper” and a “serious matter” if he did. According to Neidle, this was “false”, “outrageous” and “an attempt to intimidate [him] into silence.” Instead of giving in to the threat, he publicised it and reported Osborne Clarke to the Solicitors Regulatory Authority. (You can read more about this in Neidle’s own words.)

I have seen similar attempts to impose restrictions on people in receipt of a lawyer’s letter. Someone close to me is currently in dispute with her landlord over the service charges. The landlord obtained a letter from their solicitor which purported to shore up the landlord’s position by quoting several defined terms from the lease. But, noticeably, it excluded the definition of “service charge”. (It would have fatally undermined their position if they had mentioned it.) It’s difficult to tell if that was incompetence or an attempt to mislead. Either way, the letter concluded with this little gem:

We understand this letter may be shared with a [lessee]. We have no objection to disclosure of this letter for that narrow purpose, but that must be strictly on the basis that legal privilege is not waived.

Those words are, at best, meaningless and, at worst, an attempt to limit the lessee’s use of the letter by confusing them. Granted, the words are not a threat. At least, I don’t think they are. “Privilege”, in this context, is the landlord’s right not to share the letter with the lessees.¹ (As you would expect, the landlord doesn’t have to show its legal advice to the other side in a dispute.) If the landlord chooses to share the letter, that right is surrendered. Once the landlord has passed the letter on to the lessees, it makes no sense to assert that the landlord still has the right not to show it to them.

Prior to the recent general election, a private member’s bill was going through Parliament with the aim of banning SLAPPs. The legislation was not completed in time, so it was lost when Parliament was dissolved. Some had hoped that the new Labour government issue might bring the issue back to the House, but it was not included in the King’s Speech.

As welcome as anti-SLAPP legislation would be, it would not be enough for my liking. The solicitors’ regulatory code is proving to be insufficient to deter lawyers from attempting to intimidate those whom their clients fall into dispute with. Something tougher is needed, along the lines that have been proposed for SLAPPs, but applicable in all instances of intimidatory threats of litigation. This should include protective measures for targets of such behaviour, including cost protections and compensation where applicable, coupled with penalties that are sufficient to deter the use of such tactics in the first place.

1. The solicitor’s letter was not passed on under cover of a without prejudice communication, which would be a claim to a different type of privilege.