DO NOT WRITE TO THE COURT WITHOUT COPYING IN THE OTHER SIDE: NOW ITS IN THE RULES – AND THERE ARE SANCTIONS FOR NON-COMPLIANCE by Gordon Exall

In Applications, Civil Procedure, Rule Changes

The writer has looked several times at judicial warnings against one party writing to the court without copying in the other party.  Those warnings have now been inserted into the Rules. The Civil Procedure (Amendment) Rules 2019 introduce a new CPR 39.8 which comes into force on the 6th April.  The new rule is clear in its prohibition against a party writing to the court unilaterally. Such correspondence will normally be sent back, further the court can impose sanctions if a party writes unilaterally.

THE NEW CPR 39.8

“Communications with the court

39.8.—(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”

NOTE THE EXCEPTION

The writer’s one concern is that litigators do not read this as meaning that documents and letters sent in relation to approval hearings, or Fatal Accident apportionment hearings, have to be sent to the court.   The reference in PD 21 is to the Court being supplied with counsel’s advice on the merits. I can see nothing in this new rule that imposes a duty on a party to disclose privileged documents. In any event these would come under the heading “uncontentious and administrative” given that they being disclosed for the purpose of an agreement being approved.