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Bar Council: New open justice rule could disadvantage litigants in person

MoJ: concerned that LiPs not being notified

A new rule putting the parties under an explicit obligation to disclose to the other side communications with the court could disadvantage litigants in person (LiPs), the Bar Council has warned.

The Ministry of Justice (MoJ) is consulting [1] on a series of changes to part 39 of the Civil Procedure Rules, designed to promote open justice.

The MoJ said: “It is a fundamental rule of the administration of justice that none of the parties may communicate with the court without simultaneously alerting the other parties to that fact.

“The concern is particularly acute where a represented party communicates with the court, without notifying the unrepresented opposing party.”

The proposed new rule states that “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”.

The rule would not apply to communications that were “purely routine, uncontentious and administrative”, or where there was a “compelling reason” not to disclose.

The Bar Council said the proposed new rule appeared to address “substantive communications without imposing unnecessary limitations on run-of-the-mill correspondence with the court”.

However, it queried “whether instances of representing parties failing to notify unrepresented parties are as prevalent as suggested in this paper.

“We would expect that such provisions are more likely to negatively impact litigants in person, who are likely to be unfamiliar with Civil Procedure Rules and therefore communicate with the court without notifying represented parties.”

The Bar Council was more positive about a new rule giving judges the power to order lawyers to share notes of hearings with LiPs.

“The current draft of the provision suggests that the requirement to assist in the preparation of a note will be only if directed by the judge. This seems appropriate.

“Depending on its content, the sharing of a note of proceedings or liaising with the opposing party as to the content of the note could minimise disputes going forward and ultimately result in proceedings running more smoothly.”

Responding to a question from the MoJ as to whether, apart from judicial review applications under the Aarhus Convention, there were “any other reasons” why a hearing should be held in private, the Bar Council set out the full list from CPR 39.2(3).

The list includes claims by a mortgagee or landlord for possession, applications for charging or attachment of earnings orders, applications for administration or receivership orders, and proceedings under the Consumer Credit Act 1974, the Inheritance (Provision for Family and Dependants) Act 1975 or the Protection from Harassment Act 1977.

The Bar Council concluded: “Many of the changes appear to reflect the current practice in the High Court and County Court. However, the more prescriptive nature of these changes may reduce instances of confusion as to procedures.”

The Civil Procedure Rule Committee set up an open justice subcommittee in June 2017 to review the rules so that they reflected “more properly” the principles of open justice.