Hidden Dangers for English Solicitors in Pre-Action Conduct Scenarios in England and Wales

Introduction: Pre-action conduct in England & Wales is pivotal in dispute resolution, shaping litigation and ensuring adherence to professional standards. Solicitors and regulated lawyers must comply with the Solicitors Regulation Authority (SRA) Standards and Regulations and Civil Procedure Rules (CPR) to avoid regulatory sanctions, reputational harm, and adverse court rulings. Through illustrative examples, this article examines the risks of non-compliance, such as aggressive correspondence and non-compliant pre-action letters, and provides practical guidance to uphold integrity, maintain public trust, and foster fair dispute resolution.

The Importance of Compliant Pre-Action Conduct

The SRA Code of Conduct for Solicitors and Firms, alongside CPR Pre-Action Protocols, mandates professional, fair, and constructive engagement before litigation. Solicitors must uphold SRA Principles, including acting with integrity (Principle 5), maintaining public trust in the profession (Principle 2), and complying with regulatory obligations (Principle 7). Breaches, such as aggressive correspondence or failure to follow protocols, may trigger SRA investigations and sanctions.

Examples of Non-Compliance

1. Aggressive and Threatening Correspondence

Consider a hypothetical scenario where a solicitor, representing a client in a defamation dispute, sends a letter accusing the opposing party of “dishonest and institutional misconduct” without evidence. In a fictional exchange between Example Solicitors and Example 2 Lawyers, such inflammatory language was used to intimidate rather than resolve. The SRA’s Warning Notice on Strategic Lawsuits Against Public Participation (SLAPPs, updated 31 May 2024) cautions against tactics designed to intimidate, which may breach Principle 1 (upholding the rule of law).

Consequences: The SRA may investigate breaches of Principles 2 and 5, potentially imposing fines, reprimands, or practice restrictions. Courts may also award costs penalties for unreasonable conduct under CPR 44.11.

2. Threats of Media Exposure

Imagine a solicitor threatening to publicize a dispute on social media unless demands are met, as in a fictional letter stating, “Our client reserves the right to share this matter on public platforms if a satisfactory response is not received.” Such threats resemble SLAPP tactics and may contravene section 21 of the Theft Act 1968 (blackmail) and SRA Principle 2. The case of Ferster v Ferster [2016] EWCA Civ 717 underscores the impropriety of publicity threats in legal negotiations.

Consequences: Regulatory action could include suspension or referral to the Solicitors Disciplinary Tribunal (SDT). Courts may view this as an abuse of process, risking case dismissal or adverse costs orders.

3. Non-Compliant Letters Before Action

Suppose a solicitor sends a letter claiming £30,000 for defamation without specifying the alleged statements or quantifying damages, as in a fictional letter from Example Solicitors. This fails to comply with the Pre-Action Protocol for Media and Communications Claims, hindering resolution and breaching SRA Code paragraph 1.4 (misleading behaviour).

Consequences: The SRA may find breaches of Principles 4 and 5, resulting in warnings or fines. Courts may also impose costs sanctions for inadequate pre-action correspondence which fail to meet protocol requirements.

4. Use of Unsecure Communication Channels

If a solicitor uses free email services (e.g., Outlook) for formal correspondence, as in a fictional scenario involving Example Solicitors, this raises concerns about professionalism and client confidentiality. The SRA’s guidance on data protection emphasizes secure communication under paragraphs 6.1–6.5 of the Code of Conduct and UK GDPR.

Consequences: Breaches may lead to SRA fines or mandatory cybersecurity audits. Persistent non-compliance could result in practice restrictions or SDT referral.

5. Unfounded Defamatory Allegations

Consider a solicitor falsely accusing an opposing firm of “illegal practice,” as in a fictional letter from Example Solicitors. This may breach the SRA’s Warning Notice on Offensive Communications (updated 25 November 2019) and Principle 5, risking reputational harm.

Consequences: The SRA may impose fines or practice conditions. Defamatory statements could also expose the solicitor to civil claims.

Regulatory Redress

Non-compliant pre-action conduct may prompt SRA investigations, particularly if reported under paragraphs 7.7 and 7.8 of the Code of Conduct. Potential outcomes include:

• Fines or Reprimands: For breaches of Principles or Code provisions.
• Practice Conditions: Restrictions on handling specific cases or clients.
• SDT Referral: For serious misconduct, potentially leading to suspension or striking off.
• Adverse Costs Orders: Under CPR 44.11 for unreasonable conduct.

Compliant Pre-Action Practice

To mitigate risks, solicitors should:

• Adhere to CPR Pre-Action Protocols, providing clear, evidence-based claims.
• Maintain professional and courteous correspondence.
• Use secure, professional communication channels.
• Avoid threats of publicity or unfounded allegations.
• Seek guidance from the SRA’s Professional Ethics helpline when uncertain.

Conclusion

Non-compliant pre-action conduct undermines the legal profession’s integrity and invites severe regulatory and judicial consequences. By adhering to SRA Standards and CPR requirements, solicitors can uphold public trust, avoid penalties, and promote fair dispute resolution. As such, reflective practice and vigilance are essential in pre-action scenarios.

By Dr Andre Alexander, ABS&P International Law Firm, Costa Rica
Law Firm Website: https://www.abspinternationallawfirm.com/

ABOUT THE AUTHOR: Dr Andre Alexander, Barrister, Solicitor
Dr Andre Alexander, Barrister & Solicitor (FJ) is a Registered Foreign Lawyer with the Solicitors Regulation Authority and is the Managing Partner of ABS&P International Law Firm.

Copyright ABS&P International Law Firm

Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and.how they may affect a case. For specific technical or legal advice on the information provided and related topics, please contact the author.