I don’t understand

AUGUST 03, 2022

POSTED BY: Zoë Bloom

‘My letter of BLAH couldn’t have been clearer’
‘As is obvious from my client’s BLAH BLAH’
‘I have repeatedly set out in BLAH BLAH BLAH’

These are all phrases used in litigation which are designed to undermine. They are intended to make lawyers feel that they are too stupid to understand something simple and more importantly, to send a message to their client that their chosen trusted advisor, isn’t very good. But its nonsense.

If something has not been set out clearly, then ‘I don’t understand’ is the only proportionate response. Spending hours trawling through dense disclosure is utterly wasteful of resources and moreover, we are not supposed to do it. See, for example, Mostyn’s comments (which are now nearly twenty years old) in W v W [2003] EWHC 2254 “Non-disclosure is a bane on the conduct of business in the Division. Its causes vast amounts of work, great wastage of costs and the consumption of a large amount of judicial resources. It stymies the prospects of settlement. It frustrates the overall objective for the resolution of these cases.”

The duty of disclosure extends beyond providing the information. The information must be provided clearly. It must be explained and referenced so it can be understood. And the person who assesses whether that has happened is not the provider of the information, it is the recipient. What is obviously wrong is the practice of intentionally making professionals question themselves. It is also inconsistent with the positive work being done throughout the profession towards helping support one another. There is no point in giving lip service to mental wellness while continuing to litigate unconstructively.