- Emails to judges which go beyond routine case management—for example, those containing argument or ‘quasi-evidence’—is contrary to proper procedure for adducing evidence in a case, and conflicts with the principle of open justice.
A feature of modern litigation, certainly in civil proceedings, is the sending of relatively frequent emails to judges. It is impossible to imagine this ten years ago; and it was developing pre-COVID. If the content of these emails is well-judged, this may all be helpful to case management and to the efficiency of the justice system (subject to the open court point mentioned below). If, however, emails go beyond routine case management—for example, if emails contain argument with the judge (before or after judgment) or what by any standard is evidence, or ‘quasi-evidence’ (see Fraser J, below)—then different questions arise.
Take the following (say) sent direct to a circuit judge. Imagine that a hearing to decide on costs of an appeal is pending.
