Letter to unrepresented debtor discouraging legal advice and imposing a 24-hour deadline (Code 1.2)
A firm acts for a supplier claiming £9,000 unpaid under a contract from Bilal Hussain, a sole trader. Mr Hussain has no solicitor and has told the firm that he struggles to read formal English. The supplier wants the firm to send him a settlement agreement admitting liability and agreeing to pay interest at 30% a year (the contract provides for 4%). The covering letter is to say that he must sign within 24 hours and that 'there is no need to involve a lawyer, as this is a standard form'.
Which of the following best describes the firm's position?
Choose one answer to see the reasoning.
Worked answer
Correct answer E: It must not send them in that form, because that would take unfair advantage of an unrepresented and potentially vulnerable opponent and mislead him.
THE RULE TO REMEMBER
A solicitor must not take unfair advantage of, or mislead, an opposing party; the duty is heightened where the opponent is unrepresented or vulnerable.
Letter to unrepresented debtor discouraging legal advice and imposing a 24-hour deadline (Code 1.2)
Paragraph 1.2 of the Code prohibits a solicitor from abusing their position by taking unfair advantage of clients 'or others', which includes an opposing party. Paragraph 1.4 prohibits misleading clients, the court 'or others'. The proposed letter would tell an unrepresented sole trader, who has said he struggles with formal English, that he does not need a lawyer. It would impose an oppressive 24-hour deadline and ask him to accept interest far higher than the contract allows. SRA guidance (Conduct in disputes; and, by analogy, the NDA warning notice, which lists discouraging an opponent from taking legal advice and oppressive and artificial time limits, and says the obligation is heightened where the opponent is vulnerable or unrepresented) treats tactics like these as taking unfair advantage. The firm may pursue the debt firmly and correspond with Mr Hussain directly. It must state the claim accurately, allow him a reasonable time to respond and not discourage him from seeking advice.
Why A is wrong: The Code expressly protects 'others': para 1.2 forbids taking unfair advantage of them and para 1.4 forbids misleading them.
Why B is wrong: The label does not affect whether the content takes unfair advantage of, or misleads, the recipient.
Why C is wrong: A solicitor may act against an unrepresented party; what matters is that the solicitor does not take unfair advantage of them.
Why D is wrong: Nothing prevents a solicitor from corresponding directly with an unrepresented opponent, provided they do so fairly.
A little more practice done.
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