A solicitor should not threaten to sue an opposing solicitor personally, for instance, for costs that may be awarded against his plaintiff client. Such a threat has no basis in law and, accordingly, it is not appropriate to make such a threat.

An analogy can be made with a threat against a medical practitioner to bring medical negligence litigation. This issue has been considered by the courts on several occasions. In Reidy v The National Maternity Hospital, Barr J stated as follows:

“…it is irresponsible and an abuse of the process of the court to lodge a professional negligence action against institutions such as hospitals and professional personnel without first ascertaining that there are reasonable grounds for so doing. Initiation and prosecution of an action in negligence on behalf of the plaintiff against the hospital necessarily requires appropriate expert evidence to support it”.

In another case, Cooke v Cronin, Denham J in the Supreme Court endorsed the statement of Barr J in Reidy and stated:

“While bearing in mind the important right of access to the courts, I am satisfied that these statements of law are correct. To issue proceedings alleging professional negligence puts an individual in a situation where, for professional or practice reasons, to have the case proceed in open court may be perceived and feared to that professional as being detrimental to his professional reputation and practice. This fear should not be utilised by unprofessional conduct.”

A solicitor who receives a threat that he will be sued personally, when there is not appropriate evidence to support the litigation, should call on the solicitor making the threat, or the managing partner of the solicitor’s firm, to withdraw the threat. If it is not withdrawn, the solicitor threatened could consider writing again, pointing out that he will have no option but to hold the other solicitor responsible for any loss arising as a result of the threat to pursue him personally, such as an increase in his insurance premium.