COPYING THE OTHER SIDE INTO CORRESPONDENCE WITH THE COURT: A RECAP AND REVIEW OF THE EARLIER CASE MENTIONED

I am writing, again, about the the judgment of Mr Justice Kerr in Topping v Ralph Tristees Ltd [2017] EWHC 1954 (QB). The point the case makes about the correct route of appeal has been commented on, however I had not anticipated the depth of feeling about the practice of one party writing to the court without notifying, or copying in, the other side. I have spoken to the claimant’s solicitor who has confirmed that prior to the hearing she was totally unaware that the defendant had written to the court directly. This was something that came out during the hearing itself.   This is important because not only was the practice criticised it appears that a litigant writing to the court in these circumstances is doing something akin to a without notice application, the standard involved is very high.

 “It is improper to communicate privately with the court, without informing the other side. It is a denial of open justice too often overlooked by courts and tribunals as well as parties. It ignores elementary fairness as well as professional courtesy.”

THE JUDGMENT ON THIS ISSUE

The claimant filed an application with the High Court seeking clarification in relation to the correct route for appeal.  The defendant’s solicitor responded by writing to the court. The claimant was not sent a copy of that correspondence.
    1. The next day, 19 May 2017, the claimant’s solicitors filed an application notice in this court, the High Court, asking for ‘a ruling as to the correct appeal route in this matter’. That application was served on Kennedys, the solicitors for the defendant in the original personal injury claim. It was supported by a witness statement of Ms Holliday, which included her recollection that at the hearing on 6 and 7 March 2017, District Judge Thorpe had said that she was ‘exercising the jurisdiction of a Circuit Judge with the permission of the Designated Civil Judge’.
    2. On receipt of the application and the supporting statement of Ms Holliday, Kennedys wrote to the High Court on 22 May 2017. I am told that that letter was not copied to the claimant’s solicitors. There is no indication on the letter itself that it was copied to the claimant’s solicitors. If it was not, it should have been. It is improper to communicate privately with the court, without informing the other side. It is a denial of open justice too often overlooked by courts and tribunals as well as parties. It ignores elementary fairness as well as professional courtesy.
    3. What appears to have happened in this case makes it necessary to restate the wise words of Lord Judge LCJ at paragraph 7 of his judgment in Mohamed v The Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2010] EWCA Civ 158:
‘It is an elementary rule of the administration of justice that none of the parties to civil litigation may communicate with the court without simultaneously alerting the other parties to that fact. … .’
    1. I made a copy of the letter available to Mr Ross and Ms Holliday at court. There was no accompanying application by the defendant to this court, nor was any fee paid. In the letter, Kennedys contended that the correct route of appeal was to a circuit judge. This was the same view as expressed in the emails I had already mentioned. Kennedys’ contention was that District Judge Thorpe had not been sitting as a circuit judge and that release of the case to her by the DCJ did not equate to conferring on her the capacity of circuit judge.
    2. That letter came to the attention of Foskett J, in this court. On 24 May 2017, he made the order which I am asked today to set aside. He discharged the order of Lang J of 9 May 2017 and directed that, ‘any Appellant’s Notice be issued before a Circuit Judge in Milton Keynes County Court’. His reasons stated as follows:
‘All the material indicates that the case was released to the District Judge to be heard by her as a District Judge, not as a Circuit Judge. This means that the avenue for any appeal from her order must be to a Circuit Judge. Since the High Court has no jurisdiction in this matter, (a) the order of 9 May 2017 must be discharged and, (b) I have no power to direct that an appeal or application for permission to appeal is heard by a High Court Judge’.
  1. No application to set aside Lang J’s order had been made by Kennedys, the defendant’s solicitor. They had merely written informally to the court. The judge’s order did not include a standard provision that a party that had not been hard could apply to set aside the order. Nevertheless, the claimant’s solicitors have now done so. Initially, they attempted to appeal against the order to the Court of Appeal.
  2. Foskett J then directed that an application should be made to set it aside; hence the application that comes before me today. It was made, accompanied by payment of the fee, a week ago on 12 January 2017. It asks, simply, that the order by Foskett J be set aside. Notice of today’s hearing was, I am told, served on Kennedys, the defendant’s solicitors, on 14 July 2017. No response from them was received but I understand they are aware of today’s hearing, at which there has been no appearance on the defendant’s behalf.

Later in the judgment the judge referred to the relevant rules and practice directions and observed:

 

  1. In my judgment, that argument is compelling and, it seems to me, manifestly correct. It is a matter of regret that Foskett J’s attention was not drawn by Kennedys, in their letter, to the provisions in practice direction 52A which I have just mentioned. They were under a duty to refer this court to relevant provisions. That duty was the more onerous because of their apparent omission to copy the letter to Collins Solicitors. Further, it seems to me likely that if Kennedys’ letter had been copied to the claimant’s solicitors, the latter would have drawn this court’s attention to those provisions, as Mr Ross did today.

THE OBSERVATIONS IN THE EARLIER  SECRETARY OF STATE CASE

Mohamed, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs (Rev 1) [2010] EWCA Civ 158 was a case where a draft judgment had been sent to the parties.  One counsel replied with a  detailed  to all the court, stating (and believing) that his letter had been copied to all relevant parties.  However it had not. This led to considerable confusion.
  1. In view of this attention we shall briefly summarise the facts as they are known to us. The three Approved Judgments were circulated to counsel, solicitors and the parties on a confidential basis in accordance with well understood practice on 5th February 2010. The parties were simultaneously informed that the judgments would be handed down on Wednesday, 10th February 2010. These were and remained draft judgments. Just because any draft is a draft judgment the opportunity for correction is available, and from time to time it is taken, not only on the application of one of the parties, but also on the judge’s personal initiative if, on re-reading his draft, he thinks it appropriate to do so. In short, the judge is not bound by the terms of the draft judgment which has been circulated in confidence.
  2. The primary purpose of this practice is to enable any typographical or similar errors in the judgments to be notified to the court. The circulation of the draft judgment in this way is not intended to provide an opportunity to any party (and in particular the unsuccessful party) to reopen or reargue the case, or to repeat submissions made at the hearing, or to deploy fresh ones. However on rare occasions, and in exceptional circumstances, the court may properly be invited to reconsider part of the terms of its draft. (see for example Robinson v Fearsby [2003] EWCA Civ 1820 and R (Edwards) v The Environment Agency [2008] 1WLR 1587). For example, a judgment may contain detrimental observations about an individual or indeed his lawyers, which on the face of it are not necessary to the judgment of the court and appear to be based on a misunderstanding of the evidence, or a concession, or indeed a submission. As we emphasise, an invitation to go beyond the correction of typographical errors and the like, is always exceptional, and when such a course is proposed it is a fundamental requirement that the other party or parties should immediately be informed, so as to enable them to make objections to the proposal if there are any.
  3. At 19.03 on Monday 8th February, the clerk to the Master of the Rolls received an email from Mr Jonathan Sumption QC, counsel for the Foreign Secretary, addressing what was described as “an important matter of substance” for the court “to consider before handing down their judgment in final form”. The crucial email was also received by the other members of the court. Perhaps the first major feature of this judgment is to emphasise that Mr Sumption’s letter was not a secret or private letter to the court. As a matter of certainty we know that it was copied to counsel for Binyam Mohamed, and indeed his solicitors wrote to the clerk to the Master of the Rolls on 9th February that they had received Mr Sumption’s letter “this morning”.
  4. It is an elementary rule of the administration of justice that none of the parties to civil litigation may communicate with the court without simultaneously alerting the other parties to that fact. Accordingly we assumed that Mr Sumption’s letter was also copied to those who had been provided with copies of the draft judgments. In view of the date and appointed time when they were due to be handed down, we also assumed that all parties would address the issues raised by the letter as a matter of urgency, first thing on 9th February. In the absence of any intimation from any other party of the wish to respond or object to the observations contained in Mr Sumption’s letter, the Master of the Rolls decided substantially to amend the draft of paragraph 168, with minor consequential amendments to paragraphs 169 and 170. This second draft (and it remained a draft) of these paragraphs was circulated on Tuesday around lunchtime. During the course of the afternoon it gradually became apparent that something may have gone awry with the arrangements for the delivery of Mr Sumption’s letter, and in any event, that there were indeed objections both to the course taken by Mr Sumption and to his proposals for possible reconsideration of the original draft of para 168.
  5. The question for us was not whether the opportunity should, as a matter of elementary justice, be made available for these responses – because that went without saying – but the mechanics of how to do so in the context that two drafts of the relevant paragraph had now been circulated. Well before 9.30am on 10th February we were notified that the Foreign Secretary would not be seeking leave to appeal to the Supreme Court. That meant that this litigation was, subject to any costs orders, and the perfecting of paragraph 168 of the final judgment, at an end, and that no further inhibition against the publication of the seven redacted sub-paragraphs remained. On one view this meant that there was no particular hurry for the judgment to be given, and in the context of over 18 months of protracted litigation, an additional delay of two weeks or so, while the rival submissions relating to the terms of paragraph 168 were considered, was not of major importance. On the other hand, these long withheld redacted sub-paragraphs demanded immediate publication, not only in the interests of Binyam Mohamed himself, but also because of the broad public interest considerations to which each of our judgments referred.
  6. We decided that publication of the redacted paragraphs should take place immediately. That inevitably meant that the reasons for our decision to reject the claim by the Foreign Secretary for public interest immunity should also be published. Copies of the seven redacted sub-paragraphs were prepared. They were read out in open court. Copies of the text were made available. The paragraphs were, as I then explained, “annexed to the judgment which we have just handed down and any further copies of the judgment in whatever form it may take”.
  7. As soon as that process was completed we immediately turned to the objections to Mr Sumption’s letter, and to the consequent changes following that letter to the terms of paragraph 168 (with the minor amendments to paragraphs 169 and170) in the judgment of the Master of the Rolls. It was made absolutely clear that this part of the judgment would be further addressed and considered in the light of any submissions which had yet to be advanced. A strict timetable was laid down. It must have been obvious to anyone in court on the morning of 10 February that paragraph 168 in its amended form did not constitute the final word of the Master of the Rolls on the subject, and that in the form in which it was included as part of his judgment, this paragraph remained a draft. He explained twice that the matter would be dealt with as it should have been dealt with, rather than how it had been dealt with. On behalf of the court he acknowledged that we had been “over-hasty”. On reflection, once the judgment and redacted paragraphs had been handed down and published, it would have been open to us to adjourn the hearing into chambers, or to have considered ordering some form of prohibition on publication of these discussions, but that would have been inconsistent with the principles of open justice.
  8. Within a short time of the court adjourning, it became apparent that the letter from Mr Sumption but not, it is fair to record, any part of paragraph 168 in its original form, was circulated widely and was or was about to be published. Rather less attention was subsequently directed to the fact that paragraph 168 of the judgment as handed down did not represent paragraph 168 in its final form, and that it would be subject to reconsideration and amendment, if necessary, in the light of further submissions.
  9. Draft judgments are necessarily circulated in confidence. It follows that all communications in response are covered by the same principle. In this case that confidentiality was broken when the letter from Mr Sumption to the court was circulated beyond the parties to the litigation, and published. Our attention was directed to CPR Part 31.22 by Miss Dinah Rose QC. We have reflected on this provision. Not least for the avoidance of any doubt in future, our clear conclusion is that this order is not directed to submissions and discussions about draft judgments which take place in open court, and does not justify any contravention of the confidentiality principle, whether in relation to draft judgments, or responses to them. The observations on the draft by any of the parties continue to be covered by the same confidentiality principles which govern the circulation of judgments in draft. The minimum requirement before wider circulation is permissible must be an application to the court for the confidentiality principle or understanding to be reviewed in the context of the individual case.”