ADVOCATES SHOULD NOT SEND UNHERALDED SUBMISSIONS AFTER A HEARING: COURT OF APPEAL MESSAGE IN A POSTSCRIPT (NOW WITH A FURTHER CASE I HAD NOT THOUGHT OF EARLIER…)

October 11, 2022 · by · in Appeals, Written advocacy

There is a postscript to the judgment of Lady Justice Elisabeth Laing in the case of MH (Eritrea), R (On the Application Of) v Secretary of State for the Home Department [2022] EWCA Civ 1296 discouraging the sending of unsolicited observations after a hearing is over.

 

“As a general rule, the parties should not unilaterally send submissions to the Court, after the end of the argument, which raise points which should have been raised during the hearing. If, however, there is a matter which has arisen during the hearing, on which they wish to make further submissions, they should raise that with the Court during the hearing.”

THE CASE

The court was considering an appeal in relation to judicial review of an asylum decision.  The appeal was dismissed, however there was a postscript to the judgment.

    1. The Secretary of State, without having been asked by the Court, and without having asked for permission to do so, sent written submissions to the Court during the afternoon after the hearing. They did not raise any new point but were merely a reiteration, in more succinct terms, of points which counsel had made during the hearing. Ms Hooper felt constrained to reply to them.
  1. In making the following observations I do not intend to be critical of counsel but rather to clarify what the practice should be. As a general rule, the parties should not unilaterally send submissions to the Court, after the end of the argument, which raise points which should have been raised during the hearing. If, however, there is a matter which has arisen during the hearing, on which they wish to make further submissions, they should raise that with the Court during the hearing. The Court will then be able decide whether such submissions are necessary. If, after the hearing, counsel wish to raise a further point, they should tell the other party or parties, and ask the Court’s permission before filing anything else. If the point concerns an issue which arose for the first time at the hearing, or which has unexpectedly come to light immediately afterwards, the Court may well agree to the filing of further short submissions, provided that the point is raised promptly after the hearing (and subject to a right of reply). An advocate will, however, rarely be given permission to file a document which puts forward arguments which could and should have been made during the hearing.”

AND ONE MORE THING…

After this post was first published George Peretz KC kindly pointed out that a similar comment had been made by Lord Justice Nugee in Wilson & Anor v McNamara & Ors [2022] EWHC 243 (Ch), a case in which a party sent in further submissions after the hearing.

 

  1. The final point is one that was adverted to in further written submissions sent by Ms Rhee on behalf of the Joint Trustees after the present hearing had concluded. There was no direction for such further submissions and the transcript shows that it was not something canvassed at the hearing, and I think the Court should properly have been asked for permission rather than the submissions being sent unsolicited. This is for much the same reasons as I have referred to above, namely that parties are expected to deploy all their arguments at a hearing and not supplement them with further thoughts afterwards. By CPR r 1.3 the parties are required to help the Court to further the overriding objective, and by CPR r 1.1(2)(e) one of the facets of the overriding objective is allotting to a case an appropriate share of the Court’s resources while taking into account the need to allot resources to other cases (and by CPR r 1.1(2)(b) another is dealing with a case in such a way as to save expense), and I do not think parties therefore have an unfettered right to file further submissions after a hearing is over. If they consider they have not done full justice to their case they should I think therefore ask the Court for permission to file further submissions, explaining why it is necessary.