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Case Report: M (Children: Applications by Email) [2021] EWCA Civ 806 - Harry Peto, Temple Garden Chambers

16/06/21. While a family case, this case highlighted the importance of the rules of procedure in instances of cases that are litigated by correspondence.

If a party applies to the Court by email, the fact that the application was made in this way and the fact that the application was decided without a hearing do not mean that the Court should not scrutinise the application with reference to procedural rules. The importance was stressed of the Court being mindful that rules and orders are to be complied with and that procedural fairness is upheld in the same way as it would be had the parties appeared in person.

While reference was made to the Family Procedure Rules (specifically r.184), the equivalent in the Civil Procedure Rules is r.23.3, which states that an application notice must be filed, and that an application may only be made without filing an application notice if this is permitted by a rule or practice direction, or the court dispenses with the requirement for an application notice.

R.18.9 of the Family Procedure Rules is mirrored by r.23.8 of the Civil Procedure Rules, each providing that an application may be dealt with without a hearing if the parties agree or if the court does not consider that a hearing would be appropriate.

The Court held that the fact that it has given a general permission for applications to be made by email does not prevent the Court from requiring an application notice to be filed in a specific instance. Similarly, the Court must discriminate between applications that require hearings and those that do not.

The central point is that the same standards of procedural fairness must apply regardless of whether the general requirement for an application notice was dispensed with and regardless of whether a hearing is deemed appropriate by the Court.

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