Most of the time I was practising was, mercifully, in the pre-email era. I could only be communicated with by letter, telephone call or fax. (OK, by telex as well in the early days, a fact that shows just how long ago that was). Communication is, of course, essential, but it is not always a good thing. Sometimes I would come across someone who would be so obsessed by their case that they wouldn’t leave me alone, that obsession usually taking the form of regular lengthy letters.
Receiving such missives could be a chore. They would normally come from litigants in person on the other side of a case I was involved in, and they would usually consist mainly of matters that were not relevant to the case. I would have to wade through them, sorting out the wheat from the chaff. Sometimes they would be from my own client, in which case I might have to gently remind them of how much time it took me to deal with the letters, time for which they were paying.
The problem of unwanted messages is now far worse, and email is to blame.
Now, technology is of course a wonderful thing. In particular, it can make life easier. But that can also be a curse. Email means that you no longer have to write, type or print a letter. You no longer have to pay for a stamp, or take it to a letterbox to post it. And above all, it’s instant. All of that is great, but it can make it too tempting for those sitting alone at home worrying about their all-consuming problems to try to resolve or relieve them by hammering at that keyboard in front of them and hitting the ‘send’ button, with emails sent to everyone and anyone. And this behaviour, as two recent cases demonstrate, does not do the culprit any favours.
The first case was Re T, a care proceedings case concerning an eight year old boy, ‘T’. During the course of the case the boy’s father sent a series of emails to the social worker. The judge described the emails as “bordering on the offensive, certainly aggressive”, and said that they made it “very clear to my mind that he would not be able to work with the Local Authority to T’s benefit”. The emails were a significant factor in the judge coming to the conclusion that he should make a care order, rather than agree to T living with the father. And the emails were not just to the social worker. As the judge pointed out, some of them were sent to him, even though he had made it clear in response to the first that it was not appropriate for any party to routinely communicate with a Judge during proceedings.
Ultimately, the emails, together with the father’s failure to cooperate with a court-ordered psychological assessment and his decision not to attend the final hearing, left the judge with “no evidence” on which to conclude the father had any understanding of the boy’s emotional needs or the ability to meet them. “In those circumstances”, he said, “bearing in mind that making a care order is an order of last resort, I accept the evidence which [the social worker] gave which is that there really is no alternative but for a care order to be made given that the only option before the Court, other than that, would be father’s application for T to live with him. There is no evidence upon which I can be satisfied that father is able to meet T’s needs.”
The other case was the Court of Protection case Re A (A Patient), heard by the President of the Family Division Sir James Munby. This concerned an elderly lady who for nearly sixty years has had to have her affairs managed for her by the Court of Protection, or its predecessors. The hearing related to a number of applications made by or against the lady’s nephew.
The President explained his behaviour thus:
“[The nephew] has been unrelentingly pertinacious in pursuit of what he believes to be his aunt’s best interests. Unhappily, his pursuit of that laudable endeavour has become obsessive and his desire to litigate (most of the time as a litigant in person) and to correspond with all and sundry has become compulsive. This obsessive compulsion is marked by the very large number of applications which [the nephew] has sought to make to the Court of Protection (at least 23) and by the enormous number of emails with which he has bombarded all and sundry since 2013.”
I’m not going to go into the details of the applications, but suffice to say that things didn’t go well for the nephew, with applications by him for the committal to prison of the solicitor acting for his aunt’s deputy for property and affairs and for a wasted costs order against those solicitors both being found by the President to be totally without merit. As the President pointed out, the nephew’s behaviour would “need to be borne in mind when considering the quantum of costs asserted to have been incurred by others in relation to all this litigation.” And so it was: the nephew was ordered to pay £55,000 costs in respect of the failed committal application and a further £37,000 in respect of the failed wasted costs application.
The moral is clear: tempting though it may be, think twice before hitting that ‘send’ button!