The judgment of Mr Justice Kerr in Topping v Ralph Tristees Ltd [2017] EWHC 1954 (QB) is another reminder of the need for parties to extend common courtesy to each other in copying their opponent into correspondence with the Court.
In this case the Claimant submitted an application to the High Court seeking the Court’s clarification in relation to the correct route for Appeal. The application was served on the Defendant’s Solicitor who then responded by writing to the Court, however, they failed to copy the Claimant’s Solicitor into that correspondence. Indeed, the Claimant’s Solicitor was not aware that the Defendant’s Solicitor had written to the Court directly until this detail came to light during the hearing of the application.
Mr Justice Kerr expressed his clear disapproval of this lack of professionalism and courtesy:
“It is improper to communicate privately with the court, without informing the other side. It is a denial of open justice too often overlooked by courts and tribunals as well as parties. It ignores elementary fairness as well as professional courtesy.”
A similar dissatisfaction for such behaviour was expressed by Lord Judge LCJ at paragraph 7 of his judgment in Mohamed v The Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2010] EWCA Civ 158:
“It is an elementary rule of the administration of justice that none of the parties to civil litigation may communicate with the court without simultaneously alerting the other parties to that fact….”
Therefore, whether it is done intentionally or inadvertently the message is clear, such behaviour will not be looked upon kindly by the Court.