The Soul of Justice: Open justice and the public availability of court documents

09.09.19

One of the fundamental principles underpinning our legal system is that of ‘open justice’; having justice not only be done, but be seen to be done. This is an essential component of a legal system in any democratic society. Open justice allows for the sort of public scrutiny of the courts which was famously described by Jeremy Bentham, the great legal philosopher, as ‘the very soul of justice’.

This is the principle underpinning the recent Supreme Court decision in Cape Intermediate Holdings v Dring  which ruled that people who are not parties to a court action could have access to written materials filed with the court, provided they can demonstrate legitimate reasons, under the conditions of open justice principles for why they need them.

While the Supreme Court’s decision was made in the context of English litigation, Lady Hale, the UK’s most senior judge, made it clear that the principle of open justice is universal and urged rule makers in all parts of the UK to consider the questions of principle raised by the case.

The impact of Dring could be significant: potential claimants could gain access to documents before deciding whether or not to raise a claim; and more information may make its way into the assorted media than ever before. Indeed, Lady Hale suggested that the media may be better placed than others to show a legitimate interest for seeking access to documents.

Cape Intermediate Holdings v Dring: What did the Supreme Court decide?

The Asbestos Victims Support Groups Forum UK sought access to a large number of documents filed with the court by the parties to a previously settled case about asbestos exposure and manufacturing.  

The English Civil Procedure Rules allow non-parties, subject to the court giving permission, to obtain a copy of any document filed at court by a party to a litigation. The question for the Supreme Court was the scope of the documents accessible under this rule and the basis of the court’s jurisdiction to allow this access to non-parties.

The court held that the Civil Procedure Rules are not exhaustive of the circumstances in which non-parties may be given access to court documents, rather they are a minimum. The guiding principle is that of open justice and all courts at all levels have an inherent jurisdiction to allow access in accordance with that principle. The procedural rules applicable to individual courts or tribunals do not determine the court’s powers to implement open justice. 

A power, not a right

The court emphasised that although there is an inherent power to grant access, the third party has no automatic right to be granted it.

The court must perform a balancing act between the requirements of open justice and any competing interests which weigh against granting access. There are a number of considerations which could lead to a court denying access such as national security, the protection of privacy, and the protection of trade secrets and commercial confidentiality.

The Impact of the Ruling across the UK

In England and Wales the Civil Procedure Rules have long made it clear that documents filed with the court may end up in the hands of third parties. Dring clarifies the inherent legal basis of the court’s powers and the process which the court should follow in deciding whether to exercise its discretion.

In Scotland the position is perhaps somewhat less clear. Whilst no-one would doubt that the principle of open justice applies north of the border, there is no rule of court setting out that third parties may obtain documents lodged in court. Lady Hale’s comments are a clear indication that this position may require to be addressed.

In the meantime however, the absence of a rule of court providing a mechanism for disclosure of court documents to third parties is unlikely to prevent a third party, including the media, seeking access if it is required to give effect to the underlying principle of open justice.

This possibility makes managing the disclosure process all the more important to best control the extent of documents which end up in the hands of thirds parties.