Written by Evidence should not reach a judge through a private or unclear route that leaves one party unable to see, test or answer it. In online proceedings, where documents can be sent quickly and informally, the need for transparent, authorised and copied communication is even more important.
Publication snapshot
- This article explains why unilateral submission of evidence to a judge may raise serious fairness concerns.
- It focuses on transparency, equality of arms, procedural control and online-hearing discipline.
- It sets out what a claimant should and should not do if they believe material has reached the judge without proper disclosure.
The core issue: evidence must be visible and answerable
The submission of evidence directly to a judge by opposing counsel or solicitors can raise serious procedural concerns if it is done outside the ordinary court process, without authorisation, or without the other party being copied in and given an opportunity to respond.
The problem is not the mere use of electronic filing, email or online hearing technology. Courts routinely receive documents electronically. The concern arises where material reaches the judge through a route that is unclear, unilateral or inconsistent with the directions governing the case.
Procedural fairness requires more than the judge seeing the material. It requires both parties to know what has been placed before the court, to understand why it is relied on, and to have a fair opportunity to object, explain, correct or answer it.
The key distinction
A properly filed and served document is different from a unilateral communication with the judge. The practical question is whether the material was submitted transparently, in accordance with directions, and with proper notice to all parties.
The legal fairness risk
In civil proceedings, the Civil Procedure Rules require cases to be managed justly and at proportionate cost. That includes, so far as practicable, ensuring equal footing, full participation and fair case management. Those principles are undermined if one party is able to place material before the judge without the other party having a fair opportunity to see and answer it.
The same concern can arise in other jurisdictions and tribunals, subject to their own rules. The label will vary: civil procedure, tribunal procedure, criminal procedure, family procedure, or judicial case management. The underlying fairness point is similar: evidence should not be introduced in a way that creates surprise, imbalance or procedural prejudice.
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1Material reaches the judge.
Evidence, submissions or correspondence are sent directly to the court or judge.
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2The other party is not properly included.
The claimant may not receive the same material at the same time or may not know it has been relied on.
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3The record becomes unclear.
There may be uncertainty about what the judge saw, when it was received, and whether it influenced any decision.
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4Fairness is put at risk.
The court may need to disregard the material, invite submissions, give directions, or record what happened.
It is usually safer to frame the objection in terms of fairness, transparency and prejudice rather than immediately alleging improper influence. The court needs a clear account of what happened and why it matters.
Professional conduct and duties to the court
Solicitors and barristers owe duties that go beyond tactical advantage for a client. Solicitors are subject to professional principles concerning the rule of law, the proper administration of justice, public confidence, honesty and integrity. Barristers are subject to core duties including the duty to the court in the administration of justice, honesty and integrity, independence and public confidence.
That does not mean every disputed document submission is professional misconduct. Mistakes happen. Directions may be unclear. Court staff may ask for documents. Online systems may generate confusion. The professional-conduct concern arises where a legal representative knowingly uses an informal or unilateral route to place material before the judge in a way that the other party cannot fairly answer.
The conduct question
The issue is not whether a representative may send documents to the court. The issue is whether they did so openly, fairly, consistently with directions, and without creating an unfair informational advantage.
Why online proceedings increase the risk
Online hearings have made many proceedings more accessible and efficient. They have also changed how documents move. Material can be emailed, uploaded, screen-shared, dropped into chat functions, or sent to court staff at speed. That convenience can create a false sense of informality.
The fact that a hearing is remote does not reduce the need for procedural discipline. If anything, it increases it. Parties may not be able to see what has been handed up, what has been emailed during the hearing, what the judge has opened, or whether all parties have the same version of the material.
Where online hearings are used, the safest practice is clear: any document relied on should be identified, filed or uploaded through the proper channel, served on all parties, and referred to openly on the record. If a new document is introduced during the hearing, the court should be asked to confirm how it will be handled.
Virtual court is still court
Electronic convenience does not displace procedural fairness. The same basic safeguards apply: transparency, notice, opportunity to respond, and a clear record of what material the court considered.
How a judge may deal with the issue
A judge who becomes aware that material has been sent inappropriately may take a range of steps depending on the seriousness of the issue, the type of material, the timing, and whether any prejudice has been caused.
The court may disregard the material, require it to be served on all parties, invite submissions on admissibility or fairness, allow time for response, adjourn if necessary, or give directions to regularise the position. In a serious case, the judge may make observations on the record or consider whether the conduct should be referred through an appropriate route.
Possible judicial responses
- Clarification: confirm what was sent, by whom, when and by what route.
- Service correction: require the material to be served on all parties immediately.
- Fairness directions: give the affected party time to read, object or respond.
- Exclusion or disregard: decline to consider the material if reliance would be unfair.
- Record keeping: ensure the issue and ruling are recorded clearly.
The judge should not be assumed to be complicit. In many cases, the judge may not know that the material was not copied to the other side, or may not yet have considered whether it creates a fairness problem.
What the claimant should and should not do
If a claimant believes opposing counsel or solicitors have sent evidence directly to the judge without proper disclosure, the response should be disciplined. The aim is to protect the record, raise the fairness issue, and ask for a practical remedy without escalating into unsupported allegations.
What to do
- Record the facts: note what was sent, when, by whom, how you found out, and whether you received a copy.
- Raise it formally: make the objection through the hearing, the court office, a written application, or an approved communication route.
- Ask for clarity: request confirmation of what material the judge has received and whether it has been considered.
- Explain prejudice: state why the submission affects your ability to answer, challenge or contextualise the evidence.
- Request a remedy: ask for the material to be disregarded, served properly, or dealt with after you have had time to respond.
What not to do
- Do not contact the judge privately: use formal channels and copy the other party where required.
- Do not assume improper motive: focus first on the process, the record and the prejudice caused.
- Do not argue from emotion: keep the point precise, factual and linked to fairness.
- Do not ignore it: silence can make it harder to challenge the issue later.
- Do not overstate the remedy: ask for a proportionate step that addresses the prejudice.
A simple formulation may be enough: “I understand material may have been sent to the judge that I have not received or had an opportunity to answer. I ask the court to confirm what has been received, to direct service of any material on all parties, and not to consider it until I have had a fair opportunity to respond.”
The closing point
Evidence reaching a judge through an unclear or unilateral route can undermine confidence in the fairness of proceedings. That risk is sharper in online hearings, where electronic communication can blur the boundaries between formal filing, informal correspondence and live hearing management.
The practical safeguard is not drama. It is procedural discipline. Material relied on before a court should be visible, served, authorised and answerable. If that has not happened, the affected party should raise the point promptly, calmly and on the record.
The practical message
Do not mirror the alleged procedural irregularity by contacting the judge privately. Preserve the record, copy the parties, ask what has been received, explain the prejudice, and seek a fair case-management response.