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from PART VI - PRINCIPLES OF CIVIL LITIGATION
Published online by Cambridge University Press: 13 December 2017
NATURE OF THE PRINCIPLE OF DUE NOTICE
Due notice demands that proceedings should not be conducted without both parties enjoying reasonable notice of the case. Nor should the court decide an action or any part of it without giving both parties reasonable opportunity to contradict the proposed decision. At the core of this principle is the need for the legal system to show respect for a person's individuality. It is the antithesis of justice for judgment to be awarded behind the back of a defendant who has no reasonable opportunity to controvert the case against him. Such highhandedness is both a naked form of despotism and old-fashioned bad manners. This principle also enables the court to avoid making an incorrect decision. Furthermore, the opportunity to satisfy the court will normally include the right to submit oral argument to supplement written submissions, at any rate in the context of case management decision-making, and of course at trial. This principle of due notice or audi alteram partem (‘let the other side be heard’) is one of the principles of natural justice. Its twin is nemo judex in causa sua or the principle of judicial impartiality (on which 26.19 ff).
The (non-binding) American Law Institute/UNIDROIT Principles recommend:
‘Neither the court nor the judge should accept communications about the case from a party in the absence of other parties, except for communications concerning proceedings without notice and for routine procedural administration. When communication between the court and a party occurs in the absence of another party, that party should be promptly advised of the content of the communication.’
The American Law Institute/UNIDROIT Principles elaborate upon the requirement of ‘Due Notice and Right to be Heard’ by noting these requirements:
(i) initial notification to the defendant of commencement of proceedings and the nature of the allegations and relief sought;
(ii) linguistic transparency;
(iii) the defence must be communicated to the claimant;
(iv) proper notification of motions and determinations by the court;
(v) the parties’ right to ‘submit relevant contentions of fact and law and to offer supporting evidence’;
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