APPLICATIONS BY EMAIL: JUDGES SHOULD BE ALERT AND THE PROCESS PROCEDURALLY FAIR: COURT OF APPEAL DECISION
There are some case where the parties attempt to litigate by correspondence, particularly correspondence with the court. Letters and emails proliferate, with no real structure. The rules of evidence, and the difference between “facts”, “arguments” and “submissions” are usually entirely forgotten by the correspondents. An example of the problems that can occur when an application is determined on the basis of emails can be seen in the Court of Appeal decision in M (Children: Applications By Email)  EWCA Civ 806 the Court of Appeal send out some warnings about the dangers of applications by correspondence.
“The essential point is that, whatever form an application takes and whether or not there is a hearing, the same standards of procedural fairness apply. The fact that an application is made by email or decided without a hearing does not mean that it should receive less careful scrutiny. On the contrary, a judge considering an application on the papers must be alert to ensure that the rules and orders of the court have been followed and that the process is as procedurally fair as if the parties were present in person.”
The Court overturned an order made by a judge as a result of receiving emails.
For these reasons, I conclude that the order was wrong and unjust for serious procedural irregularity: indeed, the error in the order was the direct result of the errors in the procedure. The appeal will be allowed and the order will be set aside. The overall circumstances speak in favour of a revision of the timetable, and not for remittal. The original order will revive, with revised dates and (because Dr D is no longer able to report in time) a different expert, who has been identified. The order will record that the mother has promised to attend her appointment and I know that those supporting her will help her to do that; if she fails without good reason, she can expect the order to be discharged. I hope she will be assessed, because even if the child cannot return to her care, the report will be of value in planning for their future, as identified in the District Judge’s original order.
Application notice to be filed
(1) Subject to paragraph (2), the applicant must file an application notice.
(2) An applicant may make an application without filing an application notice if –
(a) this is permitted by a rule or practice direction; or
(b) the court dispenses with the requirement for an application notice.”
Rules 18.5 – 18.8 concern the service and contents of an application notice. Rule 18.9 reads:
“Applications that may be dealt with without a hearing
18.9 (1) The court may deal with an application without a hearing if –
(a) the court does not consider that a hearing would be appropriate; or
(b) the parties agree as to the terms of the order sought or the parties agree that the court should dispose of the application without a hearing and the court does not consider that a hearing would be appropriate.
(2) … “
This framework allows the court to accept and consider applications made without a formal application notice and to make orders without a hearing. It is desirable, at a time when the courts are under considerable pressure of work and where remote case management hearings have become common, for these powers to be used flexibly in the interests of justice and, in the Family Court, in the interests of children. To this end, the court must distinguish applications that can appropriately be made without an application notice from applications that should, because of the importance of the issue or for some other reason, be made by formal notice. The fact that it has given a general permission for applications to be made by email obviously does not prevent it from requiring an application notice to be filed in a specific instance.
Similarly, the court must discriminate between those applications that require a hearing and those that do not. The default position is that there should be a hearing, as the court can only make an order without a hearing if it does not consider that a hearing would be appropriate. It should be on solid ground if it makes an order without a hearing when, as the rule contemplates, the parties agree that a hearing is not required, or where the order is agreed. It may also decide to dispense with a hearing in other circumstances, for example where the issue is not of particular importance, or where the proper order is obvious, or where the documents contain all the information and arguments and a hearing is unlikely to add much. There will be other reasons why an application can be fairly dealt with without hearing – it is all a matter of judgement.
The essential point is that, whatever form an application takes and whether or not there is a hearing, the same standards of procedural fairness apply. The fact that an application is made by email or decided without a hearing does not mean that it should receive less careful scrutiny. On the contrary, a judge considering an application on the papers must be alert to ensure that the rules and orders of the court have been followed and that the process is as procedurally fair as if the parties were present in person.