BACK TO BASICS 98: COPYING THE OTHER SIDE INTO CORRESPONDENCE WITH THE COURT: IT IS DANGEROUS TO ASSUME THAT THESE ARE “ADMINISTRATIVE” MATTERS
I am grateful to barrister Justin Bates for drawing my attention to the final paragraphs of the judgment of Mr Justice Fordham in Debenham-Schon v Anchor Hanover Group  EWHC 3023 (QB). It concerns the duty of a litigant to copy the other side into correspondence sent to the court. The judgment contains a warning against attempting to argue that someone need not be copied in because these were “administrative matters”. It is possible that the judge will come to the opposite conclusion.
“… those contents cannot properly be described as being “purely … administrative”. I agree with the Appellant that she should have been copied in on emails being sent to the Court; firstly, because they were advocating a prompt and expeditious dealing with a matter which would accelerate the date on which she had to give up possession; but secondly because they included the Respondent’s side of things as to events “on the ground”, including by reference to the Appellant’s conduct, and the police. It is not difficult to test the position.”
The judge was considering an appeal by a tenant. The appellant tenant was a litigant in person. The appeal was not successful. However the judge was concerned about the failure of the respondent to copy the appellant into certain key elements of correspondence with the court.
THE RULES: CPR 39.8
Communications with the court
(1) Any communication between a party to proceedings and the court must be disclosed to, and if in writing (whether in paper or electronic format), copied to, the other party or parties or their representatives.
(2) Paragraph (1) applies to any communication in which any representation is made to the court on a matter of substance or procedure but does not apply to communications that are purely routine, uncontentious and administrative.
(3) A party is not required under paragraph (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.
(4) A written communication required under paragraph (1) to 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.
(5) Unless the court directs otherwise, a written communication which does not comply with paragraph (4) will be returned to the sender without being considered by the court, with a brief explanation of why it is being returned.
(6) In addition to returning a communication under paragraph (5), where a party fails to comply with paragraph (1) the court may, subject to hearing the parties, impose sanctions or exercise its other case management powers under Part 3.
(7) Paragraph (1) does not apply to communications authorised by a rule or practice direction to be sent to the court without at the same time being provided to the other party or parties or their representatives.
THE JUDGMENT ON THIS ISSUE
Communications with the court (CPR 39.8)
The final topic with which I am going to deal in this judgment concerns communications with the court. This is not a topic which is capable of affecting the analysis on the question of permission to appeal or on the question of continuing the stay. Ms Vodanovic was quite right when she submitted that this topic, to which I am now turning, is not one which has material influence for the purposes of those two issues. But I regard it as a topic of some importance. It is, moreover, a topic which I specifically raised in my Order of 3 November 2021. I interpose, in that regard, that: I referred to CPR 39.8; I directed the Respondent’s solicitors to supply a paginated bundle of all emails between the Respondent’s solicitors and the Court (whether this Court or the county court) after 4.8.21 relating to this case, in which the Appellant was not cc’d”; and I stated in my observations in the order that: “Any explanation can and should be provided to the Court and the Appellant”.
What happens in the High Court when an appeal judge is given papers relating to a proposed appeal is that the file is provided to the judge. The judge is thus in a position to see what is being said to the Court by the parties. In the present case there have been a number of emails sent by the Appellant, who on the face of it has been careful – on each occasion – to ‘copy in’ at least one of the solicitors acting for the Respondent. That is to her credit. What I saw in the file were some emails which had involved both sides, and some emails to the Court from the solicitors acting for the Respondent which did not. An example of an email which did involve all the parties was the email which the Judge himself sent on 7 September 2021. He wanted the parties to be made aware that he had received the transcript and intended to review it in the near future, in order to approve for provision to the parties the transcript of the judgment (for which he had made a direction in his order). A series of emails from the Respondent’s solicitors to the Court dealt with topics to do with the speed with which the Court was dealing with the known application from the Appellant for permission to appeal. The Respondent was (naturally) anxious to know the position and wanted to achieve promptness in relation to determination of the application for permission to appeal, not least in the context of the stay and any enforcement. There is absolutely nothing wrong with any of that. But what is very striking is that the decision was clearly taken not to include the Appellant’s email address on the ‘cc list’ for those communications. That is a cause of concern for at least two reasons. The first is that communications relating to the timing of the Court dealing with the application for permission to appeal were communications with the Court which would have consequences for the timing for the enforcement of possession action against the Appellant. The second is that some of the communications expressly relied on what was being said by the Respondent’s solicitors to be the position ‘on the ground’.
I am going to refer to those matters, in circumstances where the Respondent’s solicitors have had the opportunity to consider their position in relation to CPR 39.8, and where the position, taken in a letter to the Appellant (5.11.21), which they maintain before me today is that there was no contravention of CPR 39.8 on the basis that the email communications were “purely … administrative”.
… our client is understandably keen for matters to be progressed in view of the ongoing situation at its sheltered housing scheme and the impact it is having on its residents (the police have made multiple attendances there since the start of September).
In another, this:
Hopefully we will have some more substantive news soon as the police are having to make repeated attendances at our client sheltered scheme due to the continual problems being caused by the [Appellant].
In another, this, in seeking:
…… an update on the status of the appeal … I can then better manage expectations of our client, the police and all those affected at our client sheltered housing scheme.
Finally, in an email from the Respondent’s solicitors to my clerk – when it was known that the papers were being placed before me – which drew attention to the email chain:
… you will see from the chain below that I have been seeking updates with regard to the status of this appeal, in view of the situation on the ground at our client’s sheltered housing scheme, following the grant of the attached forthwith possession order of 5 August.
In my judgment, those contents cannot properly be described as being “purely … administrative”. I agree with the Appellant that she should have been copied in on emails being sent to the Court; firstly, because they were advocating a prompt and expeditious dealing with a matter which would accelerate the date on which she had to give up possession; but secondly because they included the Respondent’s side of things as to events “on the ground”, including by reference to the Appellant’s conduct, and the police. It is not difficult to test the position. Suppose the Appellant had been legally represented by a firm of solicitors. I find it frankly unthinkable that solicitors could send communications of that kind while making the decision not to copy in their opponent’s legal representatives. It is regrettable, in my judgment, that the opportunity was not taken, to recognise that the emails ought, under the rules, to have been cc’d to the Appellant. It is because that opportunity was not taken, and because the position taken has been maintained, that I have addressed the issue and dealt with it here, so that any necessary lessons can be learned.