Importance of civil communication emphasised

Eggerth v Piccardi [2015] FCA 977

This decision of the Federal Court of Australia, heard before Edelman J on 3 September 2015, highlights the importance of lawyers maintaining civil relationships with other parties to litigation and their representatives.

The hearing concerned an application for disclosure prior to a court-appointed mediation to be held on 7 August 2015. The applicant’s solicitors submitted that the effectiveness of the mediation would have been impaired in the absence of disclosure of various documents.

The court did not accept the applicant’s submissions and the application was dismissed on the basis that the respondent had given sworn evidence that all documents had been provided, with the exception of the current year’s financial documents.

Of great concern to Edelman J, however, were submissions by counsel for the respondents that the difficulty was one of “personalities”. The applicants and the respondents had a long-standing friendship and the respondents asserted they wished to maintain that friendship.

Edelman J referred to the degeneration in the correspondence between the parties and noted that “matters become grave where, as appears to be the case here, it is the relationship between the solicitors that interferes with the orderly conduct of litigation”.  He commented that the application need not have been made and the issue should have been resolved between the solicitors, and further commented that “it can only be hoped that a different and conciliatory approach between solicitors will be taken at the mediation in the interests of their clients”.

While both parties sought costs in relation to the application, ultimately Edelman J ruled that costs be reserved. That order was made on the basis that an order for each party to bear their own costs would likely have resulted in further submissions, resulting in even more wasted time and money.

This case identifies the importance of maintaining civility in correspondence with opposing parties, even in circumstances where this may be difficult. An even greater obligation would surely be read in regard to those acting under the obligation of a model litigant.

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