On corresponding with the Court, and courtesy amongst counsel.

Picture this. You're handling a contentious matter that is making its way through the Court. One day, you are notified that the other party has written to the Court with a request.

No big deal, except:
(a) the letter was sent to Court 2 days ago;
(b) the Court has responded to the letter; and
(c) you didn't even know that the letter had been sent to Court, and didn't have the opportunity to address the letter before the Court responded. Worse, there were inaccuracies in the other party's letter.

Would it surprise you to hear that this is a regular occurrence?

This year alone, I've been on the receiving end of such conduct for several matters.

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This issue arises when counsel writes to the Court via the eLitigation system (an online portal used to file, serve, and receive Court documents).¹ Counsel can serve the letter to Court on other parties:

(a) immediately: the letter is sent to other parties at the same time when it is sent to the Court; or

(b) upon acceptance: the letter will not be sent to the other parties until after the Court has formally accepted or rejected the letter.

The problem with (b) is that none of the other parties will see the letter until after the Court's formal acceptance or rejection, and issuance of accompanying remarks. This could be days later. More problematically, this leads to the risk of the Court forming a certain view before all parties have had the chance to respond (and in particular to correct any inaccuracies).

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In order to avoid such asymmetrical correspondence, counsel should, when writing to the Court:

(a) send a copy to the other parties contemporaneously, whether by email or fax; and

(b) effect service upon acceptance as well, so that all parties are promptly informed of the Court's remarks (when they are eventually issued).

(Let's call this the "Simultaneous Approach", and the scenario above the "Asymmetrical Approach".)

When polled, 9 out of 10 litigators agree that the Simultaneous Approach is the correct practice.²

Yet the common defensive response, when I call out counsel who adopt the Asymmetrical Approach, is that service upon acceptance fulfils the requirement for all parties to be copied on correspondence to the Court.

It is true that the rules do not specify when copies of correspondence to Court should be sent to other parties, or that parties should be copied contemporanously.³

But I think this misses the point. The Asymmetrical Approach goes against the spirit of the rules, and leads to the mischief that the rules are intended to address. Consider this: how would you feel if you were subject to the Asymmetrical Approach? And if you had adopted the Asymmetrical Approach, how would you respond if the Court asked for your explanation as to why you had done so?

Fellow litigators, I would love to hear your views.