Quintus Fabius Maximus doesn’t get enough credit. Eclipsed historically by his countryman, Cornelius Publius Scipio and of course, Hannibal Barca, in accounts of the Second Punic War, fought between Rome and Carthage from 218 to 202 BC.
Fabius was the man who realised that outmanoeuvring Hannibal was smarter than fighting him in the field. Hannibal had already beaten Roman armies at Trebia and Lake Trasimene. So Fabius decided not to fight Hannibal, and instead forced him to march in a certain direction. Rome officials disagreed with Fabius and replaced him with the hotheaded, Gaius Terentius Varro. Varro, along with his fellow consul, led the Romans to their greatest defeat at the battle of Cannae in 216 BC. Afterward, the Romans heeded Fabius’s counsel and pretty much ignored Hannibal whilst attacking Carthage’s holdings in Spain.
Not that Fabius has been accorded recognition by posterity. While military schools can wax lyrical about this approach, in common discourse it is used as shorthand for a “do nothing” approach to a problem. Most people would prefer Varro’s idea, conveniently forgetting the result he brought about.
Now in litigation, when you’re the Claimant you need to be proactive; you must send your letter out, wait for a response, and then issue a claim as required. Yet Defendants generally tend not to be so proactive. In my prior experience working for Claimants, I was accustomed to being ignored. Defendants, however, should never ignore any talk of legal action against them.
Instead, consider the nature of the correspondence you are receiving. Some people will have genuine concerns they just want to see addressed. Once that is done, the issue may be resolved without further acrimony. Others may flood you with an unending series of complaints. In that case, and if the complaints are repetitive in what is being stated, a single letter in response may serve the purpose just as effectively as responding to each email, letter, or text message you receive. Then again, it may just see further complaints come your way.
The crucial point with litigation is whether the person making the complaints is actually going to litigate. Those who decide to litigate may send a few letters, before deciding to issue proceedings. Those who decide to not litigate are more likely to consider a ceaseless barrage of texts or emails will get them what they want. With the latter group, a firm response outlining your position is an ideal course of action, particularly if you dispute what they are saying. You can make it clear how you intend to act as well as put them on notice that you won’t respond any further to what is essentially the same complaint you have already addressed.
A good example of where this should have been done is the case of HKRUK II (CHC) Ltd v Heaney [2010] EWHC 2245 (Ch). Here HKRUK applied for an injunction to prevent Heaney from taking action against it after HRUK had added two floors to one of Heaney’s buildings, adversely affecting Heaney’s rights to light on a building he owned. For those unfamiliar with the right to light, it is a legal principle that means an owner of a property is entitled to receive natural light through openings (such as windows) in their property. Although Heaney had threatened repeatedly to take action against HKRUK, he never actually did. HKRUK had grown tired of this and went ahead with construction. When HKRUK tried to prevent Heaney from taking action, the court took umbrage and made an order that HKRUK had to demolish the two new floors, even though they were already rented out. While HKRUK was able to avoid this by making a monetary settlement with Heaney, had HKRUK been content to simply leave things alone, it would not have incurred that cost.
So consider how and when you should make a move, instead of rushing to respond. Or, if you’re in doubt, give Lawgistics a call. It’s a lot better than another Cannae.
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