Lost in the post?
Some disputes between expert witnesses and solicitors arise because letters are (apparently) lost in the post. Occasionally the issue resolves itself, but it can give rise to very real problems for the expert.
Consider the case of the solicitor who writes to the expert advising that a case has settled. The letter does not arrive, and the expert duly attends court to find no mention of the case. Or what about the supposed non-delivery of correspondence dealing with initial negotiations about the terms and conditions of the agreement between the parties? The expert writes to the solicitor, often following a telephone discussion as to the suitability of the expert, setting out his terms on, for example, payment. The letter is ‘lost in the post’ and the solicitor proceeds upon the basis that the terms set out in the opening letter are agreed.
The root cause of the problems that arise flow from the existence of the 200 year-old ‘Postal Rule’ in English contract law. It was established in 1818 at a time when the postal authorities did not lose thousands of letters a week, as they do today. This rule states that where delivery to a postal authority is the agreed form of communication between the parties, acceptance of its contents is complete as soon as the letter is posted, even if the letter gets mislaid or lost and does not reach the addressee.
So what steps should experts take to ensure that they do not find themselves unable to get paid because of the effect of this piece of antique law? The prudent expert might incorporate into any contract: ‘For the avoidance of doubt, no correspondence addressed to me will be of legal effect until I acknowledge receipt of it.’