LAWYERS (AND ALL LITIGANTS) REMEMBER THAT YOU CANNOT WRITE TO THE COURT WITHOUT COPYING IN THE PARTIES TO THE LITIGATION

For the second time in two days I am writing of a case where a party has written to the court unilaterally, without copying in the other parties.  It was a matter raised in the judgment of Mr Justice Fordham in Bell & Anor v Brabners LLP [2021] EWHC 560 (QB). This practice of writing to the court unilaterally has been the subject of adverse judicial criticism for many years, and banned by the rules since April 2019.

 

“”… it is a cardinal principle of the conduct of proceedings before the Court that, absent an identified compelling reason, a party’s communications with the Court on matters of substance or procedure (unless they are purely routine, uncontentious or administrative) must always be copied to the other parties to the proceedings. It is inappropriate, and unjust, to seek to communicate with the Court without this transparency.”

THE CASE

The proposed appellant was seeking permission to appeal. The respondent solicitors wrote to the court but no other party.

 

    1. “In the course of consideration by this Court of the application for permission to appeal a letter was written dated 6 November 2020 by the Respondent to the Court, asking that it be placed on the court file urgently. This was a detailed five-page letter making submissions as to why permission to appeal should be refused. In the run up to the renewal hearing before me a further copy of the letter was emailed to my clerk by the Respondent, early yesterday afternoon. When I saw the letter I took steps to discover whether it had been copied to the Applicants’ representatives. The letter on its face did not record that it had been cc’d.Upon looking at it, the email to my clerk was not cc’d to the Applicants’ representatives. I shared, with representatives for both parties, the email that my clerk had received and the attachment. The position, confirmed by subsequent emails from the parties, comes to this. The letter was not provided to the Applicants’ representatives when it was written to the court in November 2020. Nor was it provided to them when it was re-sent to the Court yesterday. The Respondent, through the lead solicitor with conduct of this matter, has apologised. I mention these circumstances because it is a cardinal principle of the conduct of proceedings before the Court that, absent an identified compelling reason, a party’s communications with the Court on matters of substance or procedure (unless they are purely routine, uncontentious or administrative) must always be copied to the other parties to the proceedings. It is inappropriate, and unjust, to seek to communicate with the Court without this transparency. This cardinal principle is clearly recorded in CPR 39.8. Observance of it is important. Having said that, and having taken the steps I have described, in the circumstances of the present case I am satisfied that I am able fairly to deal with this application on its merits.”