In what context can one reference or make points about pre-trial correspondence at trial?

Question

Suppose one has a claim against a corporate defendant, and up until the trial the defendant is represented in correspondence by a solicitor. At trial, a human director of the defendant is called by the defendant party as a witness, but the defendant itself is represented now by a barrister. If one wishes to reference claims or points made (I suppose nonetheless by the defendant, even if through its human solicitor) in pre-trial correspondence, these challenges couldn't necessarily be posed to the human director of the defendant in cross-examination, because the human director of the defendant is not actually the defendant itself, while the barrister will also not have been the one who had written the letters of correspondence (it would have been the solicitor).

If one wishes to quiz or challenge the defendant, what opportunities in trial are there to do this?

Even if we suppose momentarily that the legal representative of the defendant for the trial was the same one who had been writing all of the letters of pre-trial correspondence (ie the solicitor), as the legal representative is not a witness who can be subjective to cross-examination, are there any opportunities in a trial to enter into socratic, examination-style dialogue with the other side's representative?

And which human entity in this scenario most corresponds to the defendant itself which is not a natural person? Is it true that the correspondence despite being humanly written by the instructed solicitor was legally with the defendant, so that they may be held responsible for everything that was written therein?

Answer 1

Evidence of pre-trial correspondence can be adduced if it is relevant to a fact in issue, and not excluded by another rule of evidence. Commonly, pre-trial correspondence is not relevant to a fact in issue, because it consists of legal argument and rhetoric. In other words, the letter is a solicitor's inadmissible opinion. And when pre-trial correspondence does set out the facts, it is often in inadmissible hearsay form.

Pre-trial correspondence is also likely to attract without prejudice privilege (if sent to the other side in an attempt to negotiate a settlement) or legal professional privilege (if private between a party and their lawyer). For all of these reasons, pre-trial correspondence is not usually considered by a judge or jury at trial.

However, in some circumstances pre-trial correspondence is admissible, typically as an admission, prior consistent statement or prior inconsistent statement. Depending on the facts which make the correspondence relevant and admissible, it may also be appropriate to cross-examine the client, a director or other agent of the client who instructed the solicitor, or the solicitor, about it.

In some cases, a client may be cross-examined about a prior statement of their solicitor on the basis that the solicitor would not have made the statement without the client's authority, and would have relied on the client's instructions. If the court accepts that a prior inconsistent statement was made with the client's approval, this may damage their credibility.

If the client asserts legal professional privilege, or testifies that their lawyer acted without instructions, difficult questions arise. Some of these questions were explored by the High Court of Australia in Hofer v The Queen [2021] HCA 36. Lawyers and judges will try to conduct cases in a way which avoids these procedural challenges, if at all possible.

In rare cases, a lawyer may be called to give evidence about whether a previous representation was actually made or authorised. This is, for example, the purpose of having a solicitor or other reputable professional witness formal documents. Barristers should take special care not to place themselves at risk of becoming a witness, but in exceptional cases where the client waives legal professional privilege, they can also be required to give evidence about the client's previous instructions. Perhaps unsurprisingly, this comes up more often in criminal law.

The decision in Hofer was an appeal from the New South Wales Court of Criminal Appeal, which had received evidence from a barrister about the reasons for making decisions during the appellant's criminal trial. Conversely, the Court of Appeal of England and Wales dismissed an application for leave to cross-examine a solicitor, by applying the rules of evidence concerning prior consistent statements, in Hall v The Queen [2015] EWCA Crim 581.