The Litigation Committee wishes to draw practitioners’ attention to recent judicial comment on the furnishing of inter partes documentation to the court registrar, particularly in cases before the Commercial Court. In the recent case of Thema International Fund PLC v HSBC Institutional Trust Services (Ireland) [2011 IEHC 344], Clarke J noted that there is a growing tendency for solicitors acting for parties to copy to the court registrar, argumentative correspondence about issues that may be due to come before the court. Clarke J was of the view that it is not appropriate for one side to communicate to the court general complaints, intimations of possible applications in the future, or positions that might be adopted, by way of letters passing between the parties being copied to the court, outside of either a specific application in respect of which the documents are properly before the court, or as an agreed set of documents, which both parties are happy to have placed before the court.

Clarke J further noted that there is nothing inappropriate, and, indeed, it is often required, that there be relevant communications associated with ensuring that all of the documentation properly before the court has been filed and is available to the judge.

Where late filing of documents occurs, difficulties can arise where there is a known dispute between the parties as to whether such late-filed documentation is to be properly admissible. Clarke J urged that practitioners take care to ensure that documents that may not ultimately be admitted are not brought to the court’s attention until such time as there has been a proper decision as to whether the relevant documentation should be so admitted.