World Mental Health Day 2023
The Mindful Business Charter
Amongst litigators, one of the complaints I hear most often is that for all the fine words spoken about the importance of wellbeing, these are all too easily jettisoned when it comes to the crunch in contested proceedings: everyone has the best intentions, but they get overridden by the conduct of an obnoxious opponent, the demands of an aggressive client or the requirements of a hard-pressed court.
Last week in Innovate Pharmaceuticals Ltd v University of Portsmouth Higher Education Corporation [2023] EWHC 2394 (TCC) a High Court judge turned down an application by a defendant to adjourn the trial because the opponent had served the trial bundles 2 weeks late and with many more documents than had been anticipated. The judge had been critical of the claimant, but ultimately ordered the trial to go ahead because a fair trial was still possible. As so often, the impact on the lawyers comes second to the need for everyone to get on with it and do their best to make it work.
This tension between the competing demands of the participants in litigation is one of the themes explored in litigation guidance which was launched in March this year by the Mindful Business Charter.
The MBC was founded by Barclays and a couple of city law firms. It is not only for lawyers, but its signatories are mainly lawyers, with some financial institutions. 2 sets of chambers have joined and it is hoped that others will follow suit. This is its mission statement:
“The intention of the Mindful Business Charter is to remove unnecessary sources of stress and promote better mental health and wellbeing in the workplace. We recognise that there will be times and transactions when long hours and stress cannot be avoided, but this isn’t always the case, and we want it to become the exception rather than the rule”
The MBC’s litigation guidance starts with a statement of 8 principles on a single page. These include matters such as:
- encouraging cooperation in litigation;
- trying to stay objective and dispassionate, rather than being guided by emotion;
- showing respect and humanity towards opponents;
- recognising that pursuing a robust strategy does not entail aggressive conduct.
The guidance then includes discussion about a number of specific scenarios where unnecessary stress in litigation can occur. 13 examples are selected of the sort of situations with which many of us will sadly be familiar. These cover matters such as inflammatory correspondence, calling an opponent without warning, late or disingenuously timed applications, or blitzing the other side with correspondence. The discussion of these scenarios, although linked to the statements of principle, does not include prescriptive rules, but suggests some strategies and questions to consider. These scenarios are well-suited to being used for training events.
One of the aims of the guidance is to be realistic: it recognises that there will be hard deadlines in litigation and that there will be times where is it is necessary to work under pressure. But the point of the guidance, as with the MBC more generally, is to avoid unnecessary stress.
I was asked recently whether initiatives like this can be seen to be having an impact on behaviour. Whilst recognising that policies themselves do not achieve anything unless they are put into practice, I think there are two reasons to be optimistic.
In the first place, significant changes in behaviour can be brought about by small steps which add up over time. Anything which starts a discussion can help create an atmosphere in which more people feel able to speak out, and if necessary to call out poor behaviour.
A senior partner in a law firm told me that his team had recently finished a heavy case. Matters such as late instructions from the client had increased the pressure. To some extent they had no choice at the time but to roll up their sleeves and get on with it. However, they had taken the opportunity after the case was completed to have a debrief with the client, to explain just what it had taken to get the work done, and to explore how, by reference to the litigation guidance, strategies might be put in place in future to try to manage the process so that the workstreams were more consistent and the stresses might be mitigated. Anecdotally, I have heard of instances of litigants pointing out to opponents that they are signatories to the Charter and inviting them to reflect on whether their intemperate correspondence could be regarded as being consistent with its principles.
Secondly, the timing is opportune, as increasingly there are signs that the legal profession is alive to the importance of promoting well-being and more balanced behaviour. A good recent example is Pisante v Logothetis [2022] EWHC 2575 (Comm), in which Andrew Baker J identified a number of instances of unreasonable conduct which justified an award of costs on the indemnity basis. Those included that “the defendants responded to a serious and measured letter before action in wholly inappropriate, polemic terms, calculated to intimate.”
It is perhaps not too unrealistic to hope that the court might have reason to refer to MBC’s litigation guidance in a reported judgment. In the meantime. I encourage readers to have a look at the guidance, and even to consider whether their own organisations might benefit from signing up to the charter.
Stephen Innes
Stephen Innes is a member of chambers at 4 New Square, specialising in professional liability and costs. He represents Gray’s Inn on the Wellbeing at the Bar working group, and was a member of the Mindful Business Charter’s working party which produced its litigation guidance.
