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18 January 2018 / by / in

Open Justice

The great jurist Jeremy Bentham said that “Secrecy being an instrument of conspiracy, ought never to be the system of a regular government”.

Lord Diplock in Home Office v Human [1983] AC, also quoting Jeremy Bentham said, “publicity is the very soul of justice… the surest of all guards against improbity”. However we live in a society where many, arguably justifiable, excuses are made to conduct trials in secret and keep court proceedings out of the public gaze.

Terrorism fear levels are kept high and the surveillance state operates without any proper accountability. Protection of sources of intelligence and not compromising the efficacy of the security services is cited as the justification. On a more mundane level there are obstacles to finding out information which, if we had truly open justice should be readily available in the public domain. Gagging orders are obtained by celebrities for reasons of privacy or confidentiality, but additionally the courts provide a number of obstacles to free access to information.

The reasons trotted out, include preventing the disclosure of business secrets, or the intimate personal details of vulnerable persons.

The Civil Procedure Rules enable someone who is not a party to proceedings to obtain without permission a statement of a party’s case, a judgment or order made in public. However to access certain documents permission of the court is required. This is where the position becomes cloudy.

The complexity of what should be a straightforward matter is highlighted by a recent judgment of Master McCloud in Dring v Cape Distribution Limited & Anor (constitution – access to courts – open justice) [2017] EWHC 3154 (QB). This illustrates that access to information in court proceedings is far from automatic.

Oddly, the judgment is prefaced by a summary to enable the reader to understand the judgment. The relevant part of the summary is as follows.

“1. The right of access to court is inherent in the rule of law.

2. Openness of justice fosters the scrutiny of the courts by the public, protects the integrity of the court process and assists the development of the law and legal knowledge. It thereby supports the practical effectiveness of the right of access to court.

3. The courts do not merely provide a public service to the ‘users’ who appear before them. Previous cases form the basis of the advice given to those whose cases are now before the courts, or who need to be advised as to the basis on which their claim might fairly be settled, or who need to be advised that their case is hopeless.

5. Access to a court, being not merely the provision of a service to ‘users’ entails that the parties submitting to the jurisdiction do not have full sovereignty to determine simply by private agreement between themselves the extent to which the public may be made aware of any aspect of the proceedings before the court.

6. There is an inherent and foreseeable possibility that material deployed in court by the parties, or filed upon the records of the court as part of its process, will form part of the corpus of material which may be deployed in other cases, used for the purposes of legal advice, being academically or journalistically discussed, or considered by Parliament.

The rules and common law jurisdiction to order access to documents by the public

7. CPR rule 5.4C is the primary means by which the court’s common law power to allow access to documents to the public from the court record is administered but the common law is the master and not the servant of the rules. The rules provide a qualified and controlled system of openness regulated by the court rules in a judicial manner.

8. Where documents are filed on the record of the court then they fall within the scope of CPR 5.4C(2).

9. Served documents not on the records of the court do not fall within rule 5.4C but may be disclosed under the court’s common law power.

Applicable test

10. Documents filed on the record of the court and which are read or treated as read in court are subject to a default position in favour of the principle of open justice if the applicant has a legitimate interest.

11. Where the applicant has a legitimate interest then the court must still carry out a balancing exercise in relation to any harm to other parties’ legitimate interests when deciding whether to allow access.

12. Documents on the records of the court which are not read or treated as read are subject to a more stringent test namely that there must be strong grounds for thinking that access is necessary in the interests of justice.

13. The principle of open justice is engaged notwithstanding that a case settles before judgment. It applies to documents in such a case which have been read to or by the court, treated as so read, or which “have featured in” the proceedings.”

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John specialises in commercial and civil fraud litigation. Admitted as a solicitor in 1983, John worked in private practice and in-house for a leading life assurance company before establishing Bivonas with Antony Brown in 1997. John has extensive experience in a wide range of courts and tribunals including the UK Supreme Court, the Court of Appeal and the Divisional Court. He has been involved in a number of important reported cases.