New rules may force parties in civil cases to copy the other side into their emails to the court.  The only exceptions could be where there is a “compelling justification” to exclude the other side, such as requests for a without-notice freezing order or search and seize application.

A specially-convened subcommittee of the Civil Procedure Rules Committee (CPRC), set up to enhance the principles of open justice, put forward the idea in a preliminary paper to the CPRC.

The subcommittee said that there has been a disturbing increase in parties communicating with the court by email and failing to copy in the other party without good reason.  “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.”

It has suggested that the parties could be required to copy in the other side when communicating with the court and to confirm to the court that this has been done.  Failure to follow the rules could result in sanctions, including disregarding the communication, sending it back, increased costs or even striking out the case.

The subcommittee has also suggested that all civil cases should be conducted in public as a “default position” unless there are specific reasons to hold it in private and proposed that the courts allow for larger venues when cases are of interest to many members of the public.

The transparency and emphasis on an open court are likely to cause consternation to many parties,” said James Burgoyne, Director – Claims & Technical, Brunel Professions. “The CPRC is expected to issue a consultation document on the proposals next year, so we’ll have to see what is said in response.

Reports of the preliminary proposals have been published by the Law Society Gazette and Litigation Futures.

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