Open Justice at the Rule Committee

The Civil Procedure Rule Committee “was set up under the Civil Procedure Act 1997 to make rules of court for the Civil Division of the Court of Appeal, the High Court and the County Court.“

The principle of Open Justice has been discussed at a number of meetings and passages concerning various topics have been amalgamated below.

Court observers (including the press, legal bloggers and members of the public) would do well to ensure that the committee is encouraged to incorporate as many pro-open justice measures as possible.

Topics discussed so far

• Improving access to ‘records of the court’ following Cape v Dring
• Video Hearings – The Future
• Oral Examinations – Open Court or Private?
• CPR39.2(4) Anonymity Orders – (Minor Change)

Cape v Dring

On the 5th March 2021 the committee agreed to set-up a sub-committee to consider whether changes should be made to the rules governing access to Court documents. This follows a recommendation by the Supreme Court in the landmark open justice case of Cape v Dring.

The members of the sub-committee are understood to be Tom Montagu-Smith QC and Dr Anja Lansbergen-Mills. It is understood the legal firm Freshfields are providing assistance to the sub-committee.

The following passages are taken verbatim from the CPRC minutes:

5th March 2021

[§34] LSC2019/28 concerns access to court documents by non-parties (CPR 5.4C and r32.5, r32.14, r39.2 and r39.9). Tom Montagu-Smith QC presented the matter. In doing so, he referred to the Supreme Court judgment in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 and the more recent case of HRH The Duchess of Sussex v Associated Newspapers Limited [2020] EWHC 2160 (Ch).

[§35] In Cape, the Supreme Court considered an application after trial by a non-party for access to documents under (a) r.5.4C and (b) the Court’s inherent powers. The Court noted that the rules do not explain what documents should be kept by Courts, nor was there any statutory definition of the term ‘records of the court’, nor was there any real guidance from any other source, aside from PD5A, paragraph 4.2A. The documents listed there do not include, for example, witness statements, trial bundles or written submissions. Court records contain documents retained by the Court for its own purposes. Those purposes are not the same as the purpose for which non-parties may properly be given access to court documents, which is to promote the principle of open justice. In modern litigation, where much that was previously read out in court is now submitted in writing, it will be necessary to have access to some documents, such as written submissions and witness statements, to make sense of the proceedings. Rules are not exhaustive of the circumstances in which non-parties should be permitted access to court documents. They are “a minimum”. The court retains a broad, inherent jurisdiction to allow non-parties access to documents which have been placed before the Court if there is a good reason to do so, subject to considerations of practicality and proportionality.

[§36] At paragraph 51 of Cape, Lady Hale said: “We would urge the bodies responsible for framing the court rules in each part of the United Kingdom to give consideration to the questions of principle and practice raised by this case. About the importance and universality of the principles of open justice there can be no argument. But we are conscious that these issues were raised in unusual circumstances, after the end of the trial, but where clean copies of the documents were still available. We have heard no argument on the extent of any continuing obligation of the parties to co-operate with the court in furthering the open justice principle once the proceedings are over. This and the other practical questions touched on above are more suitable for resolution through a consultative process in which all interests are represented, than through the prism of an individual case.”

[§37]An offer from Freshfields to assist the committee in this was duly NOTED with thanks.

[§38] In The Duchess of Sussex case, an issue arose at the pre-trial stage as to whether a schedule to a Part 19 Response to a Request for Further Information fell within CPR 5.4B(1)(a). This turned on whether the schedule was part of the Response or was instead a document filed with it or attached to it. The judge found that it was the latter. He noted that there no clear reason why the rules distinguish between the statements of case and documents attached to them. He suggested that this might be a relic from times when the practice was to append evidence, such as contract terms, to pleadings.

[§39] The sub-committee considers that Cape raises a range of issues which are likely to require a comprehensive review of the rules governing access to Court documents. It also has a cross-jurisdictional interest. The Duchess of Sussex case raises a more discrete issue but may merit consideration at the same time.

[§40] The discussion acknowledged the importance of this issue and ventilated views observing that the relevant rules are distributed in a number of places; some may be outdated and in need of clarification to take account of modern practices. It may also be appropriate to address the specific issues of document retention by the Court and parties. Improvements may also be possible so that rules better align with the open justice principle and take advantage of the increasing use of electronic documents.

[§41] It was RESOLVED to form a sub-committee to consider further, liaise with other rule committees (IRC, CrimPRC, FPRC, TPC), MoJ/HMCTS Policy and report back in due course.

[§42] It was also NOTED that a public consultation on any proposed changes would be likely; as Lady Hale suggested.

[§43] Actions: Nominations for sub-committee membership to be sent to the Chair/Secretary for consideration.

9th July 2021

[§49]Access to court documents by non-parties (Cape Holdings) (LSC2019/28) 49. The Chair explained that this matter was last aired at the 5th March 2021 CPRC meeting when it was resolved to form a sub-committee to consider the points arising from the Supreme Court Judgment in Cape regarding access to court documents by non-parties.

In order for the work of the sub-committee to commence, an additional member was sought, to join the current constitution of Tom Montagu-Smith QC and Dr Anja Lansbergen-Mills. 50. Action: Secretariat to be advised when the sub-committee’s report is ready for CPRC consideration.

10th June 2022

Dring -v- Cape Intermediate Holdings Ltd [2020] AC 629.

The Supreme Court judgment concerns access to court records by non-parties and thus CPR 5.4B and C. It was last aired at the July 2021 meeting (having first been reviewed by the Lacuna Sub-Committee) to note that it should be progressed once other pressing work, such as the Service Out reforms, had been completed.

It is, therefore, now timely to convene the Sub-Committee, comprising Tower J (Chair), Tom MontaguSmith QC and Dr Anja Lansbergen-Mills and expedite its review.

Conscious that a recent judgment by Mr Justice Nicklin also refers, a copy of said judgment will be provided to the Sub-Committee as part of the deliberations.

Action: (i) Chair to provide Nicklin J’s judgment to Trower J (ii) Secretariat to provisionally schedule in time between October – December 2022 for the matter to return.

Video hearings – The future

3rd April 2020

[§5] 116th PD Update (PD51Y) to clarify the position concerning remote hearings to ensure the Open Justice principle is not compromised.

[§27] It was the unanimous view that the open meeting is an important feature of CPRC business and contributes significantly to the principle of transparency

14th May 2021

[Question to the Panel:] In broad terms, video hearings have been deployed successfully across the business and Property Courts during the Covid-19 pandemic. Will there be a comprehensive review of the use of video hearings with a view of putting in place a model which accommodates the use of them in a post pandemic landscape?

[Answer:] The MR explained that this is something which has been discussed by the senior judiciary. The pandemic has provided the opportunity to learn a lot and there is a drive to bring forward digital reforms where appropriate. Video hearings have been found to have benefits, particularly with short hearings.

However, it will be necessary to look at this subject very carefully over time. It is too early to be specific, but it is not unreasonable to expect short interlocutory hearings to continue to be conducted by remote technology. As a general approach, parties should say if hearings should be in person and a judge will decide what is the best and just way to proceed.

4th March 2022

Item 4 Video or Audio Hearings during Coronavirus Pandemic (PD51Y) CPR(21)05

The Chair explained that PD 51Y (Video or Audio Hearings During Coronavirus Pandemic)
ceases to have effect on the date on which the Coronavirus Act 2020 ceases to have
effect. It is, therefore, due to expire on 25 March 2022.

The first sentence of paragraph 3 of PD 51Y , reads, “Where a media representative is
able to access proceedings remotely while they are taking place, they will be public
proceedings.” It is a useful clarifying provision which has facilitated the use of remote
hearings in civil justice. Its introduction played a key role in the uptake of remote hearings
at the start of the pandemic. Remote hearings have proved themselves to be very useful
and, in many cases, to improve access to justice.

It was proposed to amend PD 51Y to alter the expiry date for the first sentence of
paragraph 3, decoupling it from the expiration of the 2020 Act and setting a fixed date for
its expiry 12 months later. Such an amendment is necessary as it will take some time to
put paragraph 3 on a permanent footing in the rules (perhaps through an amendment to
Part 39) and allow what has proved to be a useful and important provision to continue in
operation after 24th March, giving time to develop a rule proposal, consult the MoJ and
consider related rules changes.

It was NOTED that the other provisions of PD 51Y do not need to be continued, given that
the Police, Crime, Sentencing and Courts Bill was expected to insert a new section 85A
into the Courts Act 2003.

It was RESOLVED to amend PD 51Y to extend the expiry date for the first sentence of
paragraph 3 (decoupling it from the expiration of the Coronavirus Act 2020) by 12 months,
until 25th March 2023. Action: Sub-Committee, Drafting Lawyers and Secretariat to
incorporate into urgent PD Update.

13th May 2022

Question 20:
Are any CPR changes envisaged in the light of lessons learned from the operation of the rules during the height of the Covid19 pandemic?

The MR observed that much of the lessons learned concern technology, for example, the use of remote and hybrid hearings where that is appropriate.

Open justice principles are very important and to which the recently enacted Police, Crime,
Sentencing and Courts (PCSC) Act has given further effect.

The CPRC considered PD51Y (Video or audio hearings during the coronavirus pandemic) at its March 2022 meeting and decided to amend the expiry date (to 25th March 2023) to extend and decouple it from the Coronavirus Act.

In doing so, it was understood that the other provisions of PD 51Y did not need to be continued because the PCSC Act (at the time a Bill) was expected to insert a new section 85A into the Courts Act 2003. The commencement order for which, is expected in/around late summer 2022.

10th June 2022

Issues arising following the 143rd PD Update
In relation to the resolution at the March meeting, to extend elements of PD51Y (Video or Audio Hearings) and to decouple it from the Coronavirus Act.

PD51Y has played an important role in providing for users to access remote hearings during the pandemic and thus improved access to justice for many. That provision was extended for a further 12 months, until 25th March 2023, to allow time for primary legislation (Police, Crime, Sentencing and Courts Act 2022) to be enacted and to consider any wider policy implications.

The intention being that proposals for more permanent provisions within the CPR would be formulated. This work is ongoing with MoJ Policy and will return in due course. Action: Secretariat, in consultation with the Chair, to schedule the item in before 2nd December 2022.

1st July 2022

63. Open Justice and PD51Y CPR(22)38:
    The Chair explained that this item flows from the last meeting, when Birss LJ reported that MoJ Policy were looking into the issues expressed in response to the CPRC’s decision in March to extend elements of PD51Y (Video or Audio Hearings during the Coronavirus Pandemic) and to decouple it from the Coronavirus Act.
    This amendment came into effect, pursuant to the 143rd PD Update on 22nd March 2022.
    For wider context, it was observed that the Police, Crime, Sentencing and Courts Act 2022 (“the Act”) has now introduced new provisions concerning remote observation, by amending (pursuant to ss.198 and 199 of the Act) ss.85A and 85B of the Courts Act 2003 (in force since 28 April 2022).
    The Remote Observation and Recording (Courts and Tribunals) Regulations 2022 (SI 2022/705) is also now in force (effective from 28 June 2022).
    In addition, the Lord Chief Justice and Senior President of Tribunals have also issued Practice Guidance (dated June 2022) entitled, ‘Open Justice – Remote Observation of Hearings – New Powers’.
    However, it was NOTED that any CPR implications are still being considered and will return in due course. Action: Secretariat to programme in time at/by the December meeting.

Oral Examinations – Open Court or Private?

16th April 2021

[§25] LSC2021/10 concerns CPR71 and whether Oral Examinations are in private or open court. This was raised by the Senior Master. It has wide reaching implications and important open justice considerations.

It was RESOLVED to refer the matter for further consideration by a sub-committee comprising, Master Cook, Master Dagnall and a District Judge. Before the matter returns to the CPRC, consultation with the Chancery Masters should also take place. Action: DJ nominations to the secretariat/Chair by 14 May 2021.

CPR39.2(4) Anonymity Orders – (Minor Change)

1st July 2022

54. LSC2022/8 (CPR39.2(4) Anonymity of other persons). Master Dagnall set out the
    background.
    The issue concerned anonymity orders and whether CPR39.2(4) required amendment to extend its scope to protect the interests of a person different from the person anonymised.
    It was observed that CPR39.2(4) did not seem, on its wording, to enable an anonymisation of the person/party whose interests are not being secured by the making of the order.
    The LSC commented that it would prohibit it on one strict construction of the wording, although the Court may avoid that outcome by relying on the Human Rights considerations and reading CPR39.2(4) in a flexible way.
    The LSC therefore recommended consideration of substituting in CPR39.2(4) for “that person” the words “any person”. By doing so it would give flexibility and avoid the underlying policy objective being defeated.
    The Rule would remain subject to (expressly) the requirement of the anonymisation being necessary to secure the proper administration of justice and (impliedly) the Human Rights considerations.
    The relevant person would be notified and have a chance to object, and with the order being published on the Judicial website, that would enable the press et al. to make applications if appropriate.
    A discussion ensued, during which the issue of consultation was raised, but that was not deemed necessary. It was RESOLVED to amend CPR 39.2(4) by substituting for “that person” the words “any person”