Communication with the court during litigation: Zuma’s Choice Pet

Product v Azumi [2017] EWCA Civ 2133

It should be absolutely intuitive to every lawyer, indeed anyone with a sense for what is fair, that there is
no communication by one party to litigation with the court, unless the other is notified of that
communication. It says little for those involved in litigation that the Court of Appeal has felt the need to
spell that out in Zuma’s Choice Pet Product v Azumi [2017] EWCA Civ 2133

There are a few exceptions, most significantly where injunctions are sought without notice in
circumstances where involving the other party would be likely to defeat the purpose, often these are
freezing orders (Marevas) or search orders (Anton Pillers). In infant settlement approval cases it is
acceptable to show the court the claimant’s counsel’s opinion on a confidential basis. In practice sending
a skeleton argument to court, while waiting for the other party’s to be ready for exchange is acceptable.

Illustrative of this is an appeal I am currently involved in arising from the other side not observing this
fundamental principle, even though their communication after judgement was unobjectionable in nature.
The error was compounded by the fact that the deputy district judge involved was in the same chambers
as the barrister, which chambers was often instructed by her instructing solicitors, and they were able to
communicate ex parte to an address not available to the other party.

The mere fact that a part time judge is in the same chambers as a party’s advocate does not mean that
judge should be recused. That much was stated by Sales J in Watts v Watts [2015] EWCA Civ 1297 and
adopted in Zuma. One perhaps wonders if all right minded people, who, according to the Court of
Appeal, would be aware that ‘high ethical standards are achieved’ by barristers, would actually see
nothing unfair about such a situation.

Even accepting the Court of Appeal’s view, to not explicitly and at the earliest opportunity disclose such
a connection may give an impression of unfairness and is a recipe for disaster, or at least a costly appeal.
I would suggest the better course is to avoid appearing in front of members of chambers at all if it can
reasonably be avoided. If it can’t be avoided openness and a complete lack of ex parte communications
are essential.


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