BACK TO BASICS 98: COPYING THE OTHER SIDE INTO CORRESPONDENCE WITH THE COURT: IT IS DANGEROUS TO ASSUME THAT THESE ARE “ADMINISTRATIVE” MATTERS

2 Responses

1. 

   David Burrows · September 11, 2023 at 11:29:30 · →

   For what it is worth here is my note of a couple of years ago on the parallel FPR 2010 r 5.7:

   Direct communication by parties with the court

   A feature of the past ten years, especially since the on-line work of the courts with the pandemic, but also with the progressive reduction of HM Courts and Tribunals Service staff, is that there is much more direct contact – mostly electronic – between parties and the court, and with judges in a particular case. What are the rules as to what contact each party may have direct with the court or with a judge in a particular case? Principles of openness should apply without exception as between each of the parties and the court, save where ‘compelling reason’ (FPR 2010 r 5.7(3)) – such as an unarguable instance of confidentiality – is said to apply.

   Formally, tucked away at the end of Family Procedure Rules 2010 (FPR 2010) Pt 5 (which is mostly about documents and their filing) and under the heading ‘Communications with the court’, r 5.7(1) deals with parties’ contact with the court: ‘Any communication between a party to proceedings and the court must be [sent or] copied to, the other party or parties or their representatives.’ Rule 5.7(1) is the simple starting point. ‘Court’ is not defined (court office, judge or both?); but from the way r 5.7 plays out, it is clear the rule-makers intend that that both the court administration and any judge concerned in a case are each comprised in the term.

   Any communication covered by r 5.7(1) must not just be copied to others but must state on its face that it is being so copied and – says r 5.7(4) – it must be ‘copied to the other party or parties, or their representatives, must state on its face that it is being copied to that person or those persons, stating their identity and capacity’ (says the rule). In most cases it will be clear what is the capacity to parties to a communication (say an email sent to the court and to parties), but if this is not clear the body of the email should say so.

   Thus far r 5.7 emphasises the element of fairness implied by operation of any proceedings and the need to recognise the even-handedness required of communications with the court; and that communications on ‘matters of substance or procedure’ (r 5.7(2)) communicated to the court must be copied to all parties. What is and is not ‘routine’ in this context must be for the court to decide.

   ‘Compelling reason’ not to communicate information

   The reservation within the rule is the inscrutable r 5.7(3):

   (3) A party is not required [by r 5.7(1)] to disclose or copy a communication if there is a compelling reason for not doing so, and provided that any reason is clearly stated in the communication.

   This sub-rule trails a number of controversial questions, not least of all what is meant by the insouciant term ‘compelling reason’. First the arbiter of what is a ‘compelling reason’ must be the court. By definition, there is no one else who can perform the role. Second, the question – by the applicant party and the court alike – must be seen in the light of the much wider subject of the duty of the court to receive all relevant evidence and of ‘withholding disclosure’ under FPR 2010 r 21.3 (see consideration in Privilege and confidentiality III by David Burrows [2021] Fam Law 1539).

   An example of a generally accepted ‘compelling’ – and essentially administrative – ‘reason’, for example, is that only advocates in a case (where essential: eg submitting an agreed order to the court) correspond by email with the judge who made the order proposed by all parties to be sealed; but in sending in such correspondence to the judge, neither judge not advocate in the case must be tempted off the order drafting piste.

   Send it back…

   If r 5.7(4) – that a communication must not just be copied to others but must state on its face that it is being so copied – is not complied with by a party or their legal representative then r 5.7(5) says that a non-compliant communication will be returned to its ‘sender without being considered by the court, with a brief explanation of why it is being returned’. Rule 5.7 and all that the rule generally implies must be done, and must be seen to be done. And if lawyers fail to observe the terms of the rule, and loss is suffered by a party – especially a litigant in person – it is at least arguable that the party who suffers loss could claim wasted costs (Senior Courts Act 1981 s 51(6)).

2. 

   David Burrows · September 11, 2023 at 11:32:24 · →

   I’ve just realised that my note – published in Family Law (the journal) is roughly contemporary with Fordham J’s judgment.

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