Procedure rule-makers have floated the idea of forcing litigants to copy the opposing side into all emails sent to the court. The proposal is one of a number brought forward by a specially-convened subcommittee of the Civil Procedure Rules Committee tasked with enhancing the principles of open justice.
According to a preliminary note prepared for October’s meeting of the CPRC released yesterday, the five-strong group does not recommend substantive law reforms but says there is scope to amend civil procedure rules to improve transparency.
The subcommittee said it was aware of a ‘disturbing increase’ in the practice of parties communicating with the court but not including the other side, without good reason to exclude them.
The paper says: ‘This is a serious denial of open justice of a particular kind; it is self-evidently objectionable, other than in exceptional cases, for a party to engage in a private dialogue with the court behind the back of the other party.’
The group, which was set up in June, says the time may have come to include an ‘explicit obligation’ to copy in the other side when communicating with the court and separately an obligation to tell the court this has happened.
The rules should also address sanctions for not complying with this obligation, including disregarding the communication, sending it back, or in extreme cases striking out the case entirely.
The document alights on two civil justice issues affecting open justice in the coming years, namely the increase in litigants in person and the growing influence of online dispute resolution.
On the LiP issue, the group is careful not to recommend substantive changes to the rules banning recording equipment from court, but is ‘conscious’ that of the difficulties in taking an accurate note of proceedings while representing yourself. The document proposes whether it may be appropriate to include a case management power designed to make it easier for parties to obtain a useful summary or short note on proceedings.
There is also discussion about increasing moving court proceedings to a bigger venue if there is a public interest in large numbers attending. Subcommittee members also want consideration of an explicit provision in civil procedure rules insisting parties and witnesses are named unless an exception is made on specific grounds.
The CPRC recorded following discussion of the note it was ’content with the progress and direction of travel’ of the subcommittee.