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July 30, 2019updated 30 Sep 2022 8:08am

Open justice principle applies to all courts and tribunals, Supreme Court rules

By PA Media Lawyer

The open justice principle applies to all courts and tribunals exercising the judicial power of the state, the Supreme Court has ruled, reinforcing the right of the media and public to access documents used during a trial.

The declaration came in a ruling made yesterday by five Supreme Court justices who rejected an asbestos company’s appeal against a decision allowing Graham Dring, representing the Asbestos Victims Support Groups Forum UK, access to a wide range of documents used in a High Court trial in 2017.

The Forum applied under rule 5.4C of the Civil Procedure Rules, which deals with third-party access to the “records of the court”, for copies of all the documents used at or disclosed during the trial, including bundles and transcripts.

The group believed the documents would contain valuable information about the asbestos industry’s knowledge of the dangers of the material.

The High Court and Court of Appeal ruled in the Forum’s favour but Cape Holdings appealed to the Supreme Court arguing it was wrong to equate the court’s inherent jurisdiction to allow third parties to cases access to documents with the open justice principle.

The Media Lawyers Association, represented by barrister Jude Bunting of Doughty Street Chambers, intervened in the case when it reached the Supreme Court, arguing that most members of the public were only able to scrutinise court through media reporting, meaning media access to court documents is essential.

This need often arose after cases were over and judgment given because that was when it became known that scrutiny was required, he said.

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Lady Hale, delivering the Supreme Court’s judgment, said court rules did no more than set the minimum circumstances in which non-parties to a case could be given access to court documents – they were not exhaustive.

But it was for the person seeking access outside the rules to show a good case for being allowed it, she said.

The guiding principle was the need for justice to be done in the open – and courts at all levels had an inherent jurisdiction to allow access to documents in accordance with that principle, Lady Hale said.

She added that the open justice principle also applied throughout the UK, even if court rules might differ.

“The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state,” Lady Hale said.

“It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question.”

In the past, the general practice was that all the argument and evidence was placed before the court orally, and documents were read out, Lady Hale said.

She added: “The modern practice is quite different. Much more of the argument and evidence is reduced into writing before the hearing takes place. Often, documents are not read out.

“It is difficult, if not impossible, in many cases, especially complicated civil cases, to know what is going on unless you have access to the written material.”

But while a court had the power to allow access, the applicant had no right to be granted it, the judgment said.

Instead the person seeking access had to explain why he or she wanted it and how allowing it would advance the open justice principle.

“In this respect it may well be that the media are better placed than others to demonstrate a good reason for seeking access. But there are others who may be able to show a legitimate interest in doing so,” Lady Hale said.

The court had to carry out a fact-specific balancing exercise, starting with the purpose of the open justice principle and the potential value of the information in question to advance that purpose.

On the other hand is any risk of harm which disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others, she said.

There might be good reasons for denying access, such as national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality.

Picture: UK Supreme Court

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