The Dogtanian Rules of Communication (One for all and all for one)

Readers of a certain age will remember this :

You’re welcome for the earworm.

There is a serious point here. The Family Procedure Rules are about to be amended (as of 6 April July). One of the amendments is one that Litigants in Person really need to be aware of – it’s about communication with the court. Really the rule change I’m referring to is just formally confirming what SHOULD have been happening in any case, but the fact that the rules have been changed to spell it out is an indicator that there has been a problem that the powers that be are trying to alleviate. And that in future courts may be less tolerant of litigants in person sending things to the court without copying in the other people in the case.

When cases are run by lawyers, the lawyers know that (with very limited exceptions) anything that goes to the court or is seen by the judge has to be sent to everyone in the case. Copying in the other lawyers or parties is routine when corresponding with the court. The Family Court (as with other courts) works on a ‘cards face up’ basis. You don’t have secret communication with the judge, and you don’t get to ambush people when they only find out about some document or evidence you’ve sent to the court when the judge mentions it in passing (or if you do you run the risk of the whole hearing being put off because the other side needs time to read and think about it before its fair to go ahead).

Litigants in person don’t always appreciate this. They very often send things to the court without sending them to the other party. Either because they mistakenly think that the court will keep it private on request, because they assume that the court will send it on their behalf to the other person (wrong!), or because they haven’t thought about it at all. It has to be said that some litigants in person seem to persist in doing this even when they have been told – and it is hard not to draw the conclusion that they are doing this to try and disadvantage the other party by not giving them notice of their position or evidence. This can result in unfairness, chaos, adjournments and wasted costs when hearings aren’t effective.

I’ve been banging on for years about the need to make sure that anything you send to the court or give to the judge is also provided to the other party or their lawyer – that’s where the one for all comes in. Always take three copies. One for you, one for the judge, one for the other party : one for all.

So, that new rule :

Communications with the court

5.7.(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, exercise its case management powers under Part 4.

(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. 

[my emphasis]

 

I’m confident that by this point some of my non-lawyer readers will be wailing at the screen – but lawyers are sly. They do things behind our back…They trick us…

There is a flip side to this rule, too. No doubt it isn’t just intended to regulate the behaviour of litigants in person. It is also intended to regulate the behaviour of lawyers. Although in my experience lawyers are pretty good at cc’ing all the right people, they do also get it wrong sometimes. Whilst lawyers are usually careful to cc all the other lawyers when communicating with the court they do on occasion (in my experience) forget to cc a litigant in person and they get left out of the loop. This is usually unintentional in my experience but it does matter. This rule will impact on that too.

There are occasions where a judge will ask a lawyer to e-file an order and will permit it to be sent directly for checking by the judge without prior liaison with a litigant in person, and personally I often make a point of requesting this on the basis that it is very difficult to manage expectations or avoid additional extra workload if a lawyer drafting an order is expected to get it agreed before sending it in – it is almost NEVER agreed because litigants always want to have a second go at arguing their points through email, and the judge has to check and correct the order anyway to make sure it reflects their order so its just pointless duplication of work. That is just my view however, and under this new rule it will be even more important to specifically seek permission to do it that way.

Practically speaking there are problems in a case where the court expects a lawyer to be responsible for orders but where a particular judge takes exception to a litigant in person having their email address, as lawyers are sometimes expected to email the judge separately, and then strip out the judges email address before forwarding a copy to the litigant in person, making things very cumbersome if there are further exchanges – not to mention creating an impression of privileged access to the judge. The reason that some judges don’t like their email addresses being given out though is that litigants in person then often repeatedly use the direct email address to communicate with the judge, seek advice, complain about issues etc etc between hearings – all bypassing the court office and other parties risking things getting lost. And so we’ve come full circle and we are back to the need for the rule – anything that goes to the judge must go to the other parties.

Those of us who take great care to cc everyone into EVERY email we send to the judge might dare to hope that this rule will prompt some judicial training in the use of the ‘reply all’ button, to which most judges appear to be allergic – it is a source of low level irritation when attempts to communicate transparently lead to repeatedly having to relocate and punch in everyone’s email address in order to forward the judge’s reply to your copy all email, in order that nobody thinks you are having secret discussions with HHJ. Not holding my breath on that one though.

So. If you are a litigant in person here is the deal :

  • Anything you send to the court or ask the judge to read must go to the other parties in the case at the same time (or their lawyer if they have one)
  • UNLESS for example you are unable to serve them directly because their address is confidential and they don’t have a lawyer – then the court will have to send it on. BUT YOU WILL NEED TO CLEARLY ASK THE COURT TO DO SO AND SAY WHY OR IT WILL GET LOST.
  • If there is something that you think the court needs to know but the other party shouldn’t see the court can permit that, but there will need to be a VERY good reason and YOU WILL NEED TO CLEARLY SAY THIS IS YOUR REQUEST AND WHY. It isn’t automatic – the judge might not agree. The sorts of things that a court might agree shouldn’t be sent to the other party probably include things like particularly sensitive medical information about why you can’t come to a hearing, or a situation where there is important information that the court needs to know about but where there would be a risk to someone’s life or safety if the other party found out (honour violence type of situations for example). They also include situations that are already allowed to be sent without telling the other party, such as ‘without notice’ injunction applications. ‘It’s a bit embarrassing’ or ‘it’s personal’ are probably not going to cut it here.
  • If you don’t explicitly say that you are copying in the other parties (or their lawyers) the court may return your material unread. Don’t rely on the fact that the email cc box will show who the email has been sent to because the rule requires you to say WHO it’s been sent to (sometimes it is not possible to work out from a non-business email who it is that is actually cc’d because some personal email addresses don’t reference the person’s name) AND their CAPACITY e.g. the First Respondent, the Applicant’s lawyer.
  • You should expect to be cc’d into any communication the other party or their lawyer sends to the court, with very limited exceptions. Sometimes judges do ask lawyers to draw up and send in orders directly to them, but the lawyer’s job is to draw up an order that reflects what the judge has said and the judge should check that they’ve done so accurately before issuing the order.

 

10 thoughts on “The Dogtanian Rules of Communication (One for all and all for one)

  1. “When cases are run by lawyers, the lawyers know that (with very limited exceptions) anything that goes to the court or is seen by the judge has to be sent to everyone in the case. Copying in the other lawyers or parties is routine when corresponding with the court.”
    Really? I think the lawyers need to be told this. It’s not the job of litigants in person to know the rules, if they send something to the court and don’t copy the other party, it’s for the court to tell the. However solicitors regularly send communications to the court without copying the other party, particularly when there’s a litigant in person involved.
    Another favourite trick is to turn up on the day of a contested hearing with a bundle including a chronology and statement of issues they haven’t shared with the other party.
    And what if there’s a non-molestation order prohibiting communication between the parties, is the litigant in person supposed to breach that just so they can communicate with the court and risk arrest in the process? And please don’t tell me it’s classed as a “reasonable excuse” for breaching the non-molestation order, the poor litigant will still get arrested before they can explain anything.
    The police tend to make these types of arrests in their quiet time, 3-6am. Delightful.

    • See, I predicted half way down the post you’d say this.
      No doubt the rule is intended to SPELL OUT for litigants in person AND lawyers that this is what’s expected.
      I quite see the practical reality that many LiPs won’t know about the rules (which is why I’ve played my part by disseminating information here FWIW) but the fact is that if you are conducting your own litigation it IS your responsibility to try and do your best to follow the rules, albeit I acknowledge that is a really tall order for some. The rules are publicly available. I think they should be streamlined but they are available.
      In fact the rules provide for what you suggest – if a LiP doesn’t comply with the rules about ccing people the court will return it with an explanation – its there in the rule. So the LiP will be told ‘we’re sending this back because you didn’t do x. See rules’. And then they will know for next time.
      I disagree that solicitors REGULARLY send stuff to court without ccing a LiP, but if they are doing it they shouldn’t and can be told off for breaking this new rule.
      As for turning up on the day of a hearing with unshared documents – this should not happen and I’ve repeatedly said so on this blog. I know it does happen, particularly where a barrister is instructed at short notice and has no way of getting the case outline that they are REQUIRED to produce to the LIP before the hearing, but it shouldn’t. I have to say that it is a very FREQUENT occurrence that litigants in person rock up with all sorts of stuff that has never been seen before and NO COPIES for the judge or the lawyer to take instructions on. It is a problem on both sides.
      As for prohibitions on communication, as I mention in the post if there is a reason for not being able to send stuff direct (the example I gave was where the address has been withheld, which is often the same cases where there is a prohibition on communication) the court needs to be the gopher and the correspondence needs to REMIND the court that this is necessary.

      • I object to the court sending stuff back saying they haven’t copied the other side. The court should forward the correspondence and remind the litigant to copy the other side next time.
        One of the major issues is the time it takes for courts to actually look at correspondence, It can easily be a week or more before court staff actually catch up with their inbox (email or snailmail) and if they send it back (2nd class post perhaps) it will simply add delay to everything.
        Wouldn’t it make much more sense for the court to modernise, have an online case file and make it available to all parties. Once a document is filed it’s scanned and put on the case file, a notice is then sent to all parties and nobody has to forward anything to anyone.
        This is not new technology, in fact it’s getting quite old, but the courts are stuck in the 19th century it seems!

  2. It is the local authority’s legal team who should “be aware of the rules” though I am sure they are “aware” but they just do not stick to them.
    Time and again parents are handed position statements of the local authority while waiting to go into the court.Very often they are told to be in court “next day” having recently given birth and never see any evidence in advance at all .
    In Scotland Parents have been repeatedly refused permission to take hearsay statements by social workers and psychologists out of the court to study them but told instead to read pages of close typed legalese and hand them back afterwards .
    I have not heard of that happening in England but one never knows.
    What I do know is that these rules are fine but only if respected by “both sides”. Will that ever happen??

    • In situations of urgency it isn’t always practical to prepare and provide documents in advance. That does make things difficult, but courts do sometimes need to proceed with hearings at short notice for reasons of genuine urgency. But wherever possible documents should be provided in advance. Sometimes case summaries or position statements come at short notice for reasons outside the lawyer’s control – the court usually expects them to be circulated the morning before a hearing – sometimes this happens and parents lawyers aren’t always able to pass them on to their client before the hearing, and sometimes the document comes in late (for example because it couldn’t be finalised until instructions were confirmed ro because the lawyer drafting it got their papers late or was tied up on another matter). These are not excuses, just explanations of why things sometimes go wrong – and parents lawyers are as much affected / at fault here as local authority / guardian lawyers – a lawyer can’t circulate their position statement till they have papers, instructions and time to draft it. Parents position statements are very often late or not filed at all – whichever party is late disadvantages all the other parties – and sometimes their own lawyer / case. I hope that gives some context. There are multiple reasons why documents are filed late – sometimes it is just laziness or inefficiency, but often it is a product of pressure of work and a chain effect of waiting for some other essenitial piece of outstanding information.

  3. Someone needs to speak to social workers about this, and about filing reports by the deadline set by the court. Which in our case was never adhered to. The first report a Sec. 37 was given to us at court at 9.45 am on the morning of the hearing. The second report a Sec. 47 was given to us, at our insistence, only at 4pm on the evening before the next days hearing and we had to pick it up from the council offices, and it was simply a (lengthy) print out of the computer record of it and was not in finished formal report format at all. The third report a Sec. 7 (2 years down the line from the first one), we likewise had to collect from the council offices at 4pm on the evening of the next day’s Directions hearing – which then without prior notice that judge decided was the Final hearing!. So, quess what, LiPs inadvertently making mistakes or not playing by the rules, yeah right, a bit of an issue maybe, but an even bigger issue highlighted by our 16 court hearings was the deliberate, repeat, deliberate non compliance as a matter of course, by both the local authority AND the other party’s solicitor, who clearly were trying to trick, confuse and bamboozle us as LiPs to meet their own agendas and to try and get their own preferred outcomes.

    • I don’t know the circumstances of your case but the court will of course make accommodation where something has to be filed at short notice – and a s47 report is usually prepared in situations of urgency. You are describing a wider pattern of late service of documents and that shouldn’t happen.

      • Sadly Lucy, I’m not allowed to tell you all the circumstances…….but we have plans moving forward which mean we might have need of a barrister, in which case I’ll be shouting your name! 😀

  4. “honour violence type of situations for example”

    If you are going to allege that a litigant will get violent if properly served with material which on the face of it ought to be served on that litigant – that’s a very serious allegation on which that litigant is entitled to be heard on notice. I see a problem there. Do you see a solution?

    • I have (rarely) had a situation where it would be (or is said to be) too dangerous to notify the other party about some piece of information because there is a genuine risk that they would be killed (for example taboo relationships or behaviour that offends against a particular religion or shames a family). There is an established process for those rare cases and the test is rightly high- but essentially the court has to look at the material ex parte and decide whether or not there really is an issue and how to safely deal with it. Sometimes that is achieved by permitting the parties’ lawyer to see it but on the condition its contents are not revealed (quite tricky ethically), sometimes by the appointment of a sort of amicus (tricky for funding reasons) and sometimes the court says its overblown and it can be dealt with some other way (such as serving it but also putting protective orders in place).
      These are difficult cases, but fortunately relatively rare.

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