Lawyers could be forced to share notes of hearings with litigants in person

Frazer: Confusion over right to know

A new rule giving judges the power to order lawyers to share notes of hearings with litigants in person is being proposed by the Ministry of Justice (MoJ).

Another new rule would put the parties under an explicit obligation to disclose to the other side communications with the court.

The proposals being consulted on by the MoJ following a review of ‘open justice’ by the Civil Procedure Rule Committee (CPRC).

The MoJ said the new rule on the recording and transcription of proceedings was needed to help “the increasing number of unrepresented parties” and “encourage the court and the parties to co-operate in providing an informal record of the proceedings while awaiting the approved transcript”.

The MoJ said that “in particular, unrepresented parties may find it useful to have an informal note of hearings, for example in order to seek further legal advice, decide whether to appeal or consider the outcome of the case”.

Draft rule 39.9 reads: “At any hearing, whether in public or in private the judge may give appropriate direction to assist a party, in particular one who is or has been or may become unrepresented, for the compilation and sharing of any note or other informal record of the proceedings made by another party or by the judge.”

However MoJ asked consultees for comments on whether they thought the draft rule placed “too much of a burden on the represented party”.

On communications with the court, 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”, as opposed to “substantive”, or where there was a “compelling reason” not to disclose.

Under the revised part 39, a new definition of ‘hearing’ would include video or telephone hearings.

The provision in rule 39.2 which states that courts do not need to make “special arrangements” for accommodating members of the public, has been replaced with one that the court shall take “reasonable steps to ensure that all hearings are of an open and public character save when a hearing is held in private”.

To help alert media organisations and other potential opponents of anonymity orders and decisions to hear cases in private, the MoJ proposes that courts are required to publish orders on the internet.

Courts minister Lucy Frazer QC said: “Our legal system is founded on the principle of open justice. The government is fully committed to this principle. The public’s right to know, to see the law as made in Parliament and decided in courts, is fundamental.

“However, there are times when the public does not or cannot have an unlimited right to know. Individual rights need to be protected as well. Recent court cases indicate that there is confusion on this issue and that the rules need to be amended to address this.”

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

In a preliminary paper to a meeting of the CPRC last autumn, the subcommittee identified a “disturbing increase in parties communicating with the court (often by email) without copying the other party, and without good reason not to do so”.

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