WRITING TO THE COURT ON A UNILATERAL BASIS: COURT OF APPEAL SAYS DON’T DO IT
Several passages in the judgment in Zuma’s Choice Pet Products Ltd & Anor v Azumi Ltd & Ors  EWCA Civ 2133 emphasise a point made earlier this year. A litigant should not write to the court on a unilateral basis.
“… all practitioners know, it is improper for a litigant to attempt to correspond with the court on a “private and confidential” basis. Communications having any relevance to a case being conducted inter partes need to be sent to the other side no later than the time when they are sent to the judge.”
The Court of Appeal was considering an appeal against a Recorder’s refusal to recuse himself. As part of the judgment the Court considered the procedural history of the case.
On 6 January 2017 HHJ Hacon received a letter or witness statement from Ms Vanderbilt dated the previous day (“the 5 January statement”) containing allegations in connection with the handling of the case against Mr Malynicz QC (leading counsel for Azumi), Mr Sevier (the solicitor at Gowling WLG with the conduct of the case for Azumi and the trade mark attorney defendants) and Mr Wilcox, who is the clerk to HHJ Hacon at the IPEC. The 5 January statement had been sent to the judge in an envelope marked “Private and Confidential”.
I should say straight away that, as all practitioners know, it is improper for a litigant to attempt to correspond with the court on a “private and confidential” basis. Communications having any relevance to a case being conducted inter partes need to be sent to the other side no later than the time when they are sent to the judge. Unless there are special reasons to do so, and there were none here, the court does not take any step adverse to a party without allowing that party the opportunity to be heard. If it is possible to do so, a judge who receives such a communication should return it unread, explaining shortly to the litigant the impropriety of sending unilateral correspondence. That, of course, may not always be possible.
In the present case HHJ Hacon did read the material he was sent by Ms Vanderbilt in the 5 January statement. He decided in the first instance not to send the 5 January statement to the respondents. Instead he took the course of preparing what was obviously a carefully considered note dated 10 January 2017 (“the Judge’s Note”) which was sent to Ms Vanderbilt, and to the respondents. In the Judge’s Note he was able to deal with and dismiss the complaints made by Ms Vanderbilt without calling for comment by the respondents. The Judge’s Note stated: