Inter Partes Correspondence and the Courts

Many local practitioners who conduct litigation on behalf of clients involving litigants in person will probably at some time have experienced similar frustrations. In particular, a tendency on the part of some litigants in person to push time limits, make applications (or submissions) by letter to the court or the judiciary administration and generally to test the parameters of good case management practice.

This phenomenon is, of course, not unique to litigants in person or to Hong Kong*.

Therefore, the Court of Appeal judgment in Axa China Region Insurance Co. Ltd v Leong Fong Cheng [2016] HKEC 2327, CACV 113/2016, is to be welcomed. The judgment (among other things) seeks to correct a tendency on the part of the courts in the past to overindulge litigants in person by (for example) entertaining informal requests or court applications by correspondence. As the judgment makes clear, the proper way to make a court application is by a summons supported (where appropriate) by an affidavit or affirmation. This procedural discipline and good practice is expected of all parties, including litigants in person.

Also welcome in the judgment is a timely and firm reminder that inter partes correspondence should not (in the normal course of events) be copied to the court. Where such correspondence is relevant to a court application it should form part of an exhibit to an affidavit or affirmation.

While the judgment of the Court of Appeal is primarily aimed at litigants in person it is also a reminder of the convention that a practitioner should not write to a judge. Where parties and their legal representatives need to communicate by correspondence with the court, in respect of administrative or clerical matters involving an inter partes court hearing, the convention is to write to the Registrar or the judge’s court clerk (as appropriate) while “copying-in” the other side.

The Court of Appeal judgment was circulated to Law Society members under cover of Circular 16-1067 (PA), dated 5 December 2016. It is understood that the judgment has also been brought to the attention of all Masters of the High Court and the High Court Registry. There is no reason why the sentiments expressed in the judgment should not apply to parties in the District Court, even if there has been a higher incidence of litigants in person there for a long time.

Finally, it is to be hoped that court clerks will also play their part. For example, as another senior practitioner wryly observed, some court clerks in the past may have unwittingly encouraged inter partes correspondence by writing too often by fax to the parties' legal representatives only to be surprised when they write back.

* For example, see the judgment of English Court of Appeal in Agarwala v Agarwala [2016] EWCA Civ 1252, 8 December 2016 and The Law Society Gazette (England & Wales), 9 December 2016 (Judge calls for LiP powers after court ‘bombarded’ with emails). The problem with emails for some litigants is that they are too easy to send.