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.
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.