I came across a really bad interstate solicitor a while back. One of his peccadillos was to write, at the end of all of his letters to my instructor — his opponent — ‘We thank you for your cooperation, and if you have any queries please do not hesitate to contact us.’ The thing is we so weren’t cooperating. I just kept on objecting to the affidavits of merits put up in support of the application to set aside a default judgment until his client decided it was no longer worth the effort. His other favourite line was ‘This letter will be used on the question of costs’ to which I thought ‘Yeah, right.’ I don’t think I ever use that purported threat in correspondence. What’s the point? But it’s so commonplace a tic that I wonder whether there is in fact any good reason for it, whether it might be a hangover from the past and I’m too young to get it. So, my question: has anyone ever crashed and burned, unable to use a letter on the question of costs for want of such a sentence? Anyone want to defend the practice? (Of course, we’re not talking about Calderbank letters here. Putting ‘without prejudice save as to costs’ on a letter is useful, no doubt.)
OK. I’ll have a go at defending it. In the land of the bigamist designed free settlers state at least. section 67C of the Evidence Act (SA) can be used to exclude admissibility of such letters, but the inclusion of the phrase, ‘This letter will be used on the question of costs’ will overcome s67C for use in argument about costs while preserving the inadmissibility provided by s67C in other circumstances.
It’s like lawyers who start every single letter with “We refer to the above matter”: utterly unnecessary.
I can’t possibly imagine that the absence of the mantra makes any difference. It’s a poor attempt to make the recipient concerned about costs. If the letter is admissible in evidence, it is admissible as to the question of costs.