Open Justice Authorities

This is a working notebook of sorts containing a selection of Authorities and other useful bits.

Please remember this is not legal advice, might be out of date and is in no way meant to be a comprehensive snapshot of a complex area of ever-evolving law.

Unaccredited Reporting

Ewing v Crown Court Sitting at Cardiff & Newport & Ors [2016] EWHC 183 (Admin) (08 February 2016)
  1. …those present in court should be able to make notes regarding the proceedings, either for the purposes of reporting (which is not limited to professional reporters and those connected with the media)
BU, Re [2021] EWCOP 54 (24 September 2021)
  1. …Accredited journalists and bloggers who attend these hearings as of right cannot be put in a position where they risk being held in contempt of court for publishing information which they hear when that information falls outside any restrictions imposed by the court. In this day and age of mass media communication, information acquires a currency as soon as it is available to a wider audience outside the court room. That is part and parcel of the valuable function which the press and others perform as monitors of the court process. They act as the conduit for public dissemination of the court’s working process and procedures and, as such, they fulfil a vital function in any democratic society.
Chan v Alvis Vehicles Ltd & Anor [2004] EWHC 3092 (Ch)
  1. …The public includes the press and in many respects is effectively represented by the press, even if judges have on occasions become restive about some of the things which newspapers do. …

Reporting Restrictions

Reporting Restriction Orders

Skatteforvaltningen v Barac & Ors [2020] EWHC 377 (Comm) (07 February 2020)
  1. …so that members of the public and the Press are in no doubt as to the definition and scope of what can and cannot be reported. It is important that any restriction on reporting is in clear terms, such that there is no possibility of any inadvertent breach, and that the wording of such a reporting restriction is disseminated to the relevant persons.

Jurisdiction

Civil Procedure Rule 39.2 “General rule – hearing to be in public”

(1) The general rule is that a hearing is to be in public. A hearing may not be held in private, irrespective of the parties’ consent, unless and to the extent that the court decides that it must be held in private, applying the provisions of paragraph (3).
(2) In deciding whether to hold a hearing in private, the court must consider any duty to protect or have regard to a right to freedom of expression which may be affected.
(2A) The court shall take reasonable steps to ensure that all hearings are of an open and public character, save when a hearing is held in private.
(3)A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice –
(a) publicity would defeat the object of the hearing;
(b) it involves matters relating to national security;
(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;
(d) a private hearing is necessary to protect the interests of any child or protected party;
(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;
(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or
(g) the court for any other reason considers this to be necessary to secure the proper administration of justice.
(4) The court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness.
(5) Unless and to the extent that the court otherwise directs, where the court acts under paragraph (3) or (4), a copy of the court’s order shall be published on the website of the Judiciary of England and Wales (which may be found at www.judiciary.uk). Any person who is not a party to the proceedings may apply to attend the hearing and make submissions, or apply to set aside or vary the order.

Lilly Icos Ltd. v. Pfizer Ltd.(No. 2) [2002] EWCA Civ 2

[Quoted in para 27]

“The court should start from the principle that very good reasons are required for departing from the normal rule of publicity……”

“The court should start from the assumption that all documents in the case are necessary and relevant for that purpose, and should not accede to general arguments that it would be possible, or substantially possible, to understand the trial and judge the judge without access to a particular document…..”

“Simple assertions of confidentiality and of the damage that will be done by publication, even if supported by both parties, should not prevail. The court will require specific reasons why a party would be damaged by the publication of a document…..”

Challenging

Guardian News and Media Ltd & Ors, Re HM Treasury v Ahmed & Ors [2010] UKSC 1 (27 January 2010)
  1. …So far as anonymity orders are concerned, the practical approach is that, where an open-ended order has been made, it should remain in force throughout the proceedings, at whatever level, unless and until it is set aside, either spontaneously on a change of circumstances, or as the result of an application by the press. That approach promotes certainty and avoids unnecessary applications.

The Balancing Exercise

Yalland & Ors v Secretary of State for Exiting the European Union [2017] EWHC 629 (Admin) (03 February 2017)
  1. Whether a departure from the principle of open justice is justified in any particular case will be highly fact-specific and will require a balancing of the competing rights and interests. The starting point must be that in a Parliamentary democracy subject to the rule of law, a person who wishes to bring a public law challenge to the conduct of the Government on the ground that it is unlawful should normally be expected to do so openly and to identify himself or herself in the process.
  2. Any exception to the principle of open justice will have to be shown to be strictly necessary in order to protect the interests of the administration of justice. The burden of establishing any derogation from the general principle rests on the party seeking it. It must be established by clear and cogent evidence.
JIH v News Group Newspapers Ltd [2011] EWCA Civ 42 (31 January 2011)
  1. The courts are not infrequently asked to make orders preventing the publication of private information, concerning, for instance, the details of a person’s finances, health, sexual activities, or family life. In such cases, the claimant is normally (but by no means always) a public figure, and at least one of the defendants is normally (but by no means always) a member of the national media.
  2. When considering what order to make on such applications, it is normally necessary to balance two competing legal rights, each of which constitutes a fundamental feature of a civilised modern democratic society. Those competing rights are an individual’s right to “respect for his private and family life”, as stipulated in Article 8 of the European Human Rights Convention and relied on by the claimant, and the more general right to “freedom of expression”, relied on by the defendant and laid down by Article 10 of the Convention, which also refers to the “right … to receive and impart information and ideas”.
  3. In many cases, this balancing exercise is difficult. This is partly because the two rights are rather different in their constituent factors, partly because there are often powerful arguments pointing in opposite directions, partly because each case depends very much on its own particular facts, and partly because the exercise can involve a significant degree of subjectivity.
Skatteforvaltningen v Barac & Ors [2020] EWHC 377 (Comm) (07 February 2020)
  1. I consider that CPR 39.2(3)(c) is prima facie engaged because confidential information will be revealed during the course of this hearing, and publicity of the details of that financial information is likely to damage confidentiality. However, considering proportionality and the overall administration of justice, it is my view that there is an intermediate option which furthers the open justice principle whilst protecting the confidentiality of the defendant.
  2. That intermediate option for the hearing to remain in public, but that there be an Order that there shall be no reporting of the financial information and assets which is revealed during the course of this hearing – such an Order can be made under the relevant provisions of the Contempt of Court Act 1981 and the relevant provisions of the CPR.
Manchester City Football Club Ltd v The Football Association Premier League Ltd [2021] EWHC 2077 (Comm) (26 March 2021)
  1. The court considered the submissions made on behalf of the Club and in particular whether publication of the judgment would disclose “significant” confidential information. The court formed the view that disclosure of the fact of the existence of the dispute and the arbitration in the circumstances did not amount to “significant” confidential information.

Access to Documents

Judgments

Manchester City Football Club Ltd v The Football Association Premier League Ltd [2021] EWHC 711 (Comm) (24 March 2021)
  1. It is desirable for any judgment to be made public in order to ensure public scrutiny and the transparent administration of justice, provided “this can be done without disclosing significant confidential information” (Bankers Trust at [39]); the confidential nature of the arbitration has to be weighed against the public interest in ensuring appropriate standards of fairness in the conduct of arbitrations.
Department Of Economic Policy & Development Of City Of Moscow & Anor v Bankers Trust Company & Anor [2004] EWCA Civ 314 (25 March 2004)
  1. Further, even though the hearing may have been in private, the court should, when preparing and giving judgment, bear in mind that any judgment should be given in public, where this can be done without disclosing significant confidential information. The public interest in ensuring appropriate standards of fairness in the conduct of arbitrations militates in favour of a public judgment in respect of judgments given on applications under s.68. The desirability of public scrutiny as a means by which confidence in the courts can be maintained and the administration of justice made transparent applies here as in other areas of court activity under the principles of Scott v. Scott and article 6. Arbitration is an important feature of international, commercial and financial life, and there is legitimate interest in its operation and practice. The desirability of a public judgment is particularly present in any case where a judgment involves points of law or practice which may offer future guidance to lawyers or practitioners. It is no surprise that there have been since the introduction of CPR 62.10 a number of reported judgments on arbitration claims where the starting point of the hearing was privacy: see [List of Authorities] In each case, there appears to have been nothing about the subject matter that could justify a private judgment, even if the parties had wished it. Some of these decisions (e.g. the last two) also appear of slight legal or general interest.

Skeleton Arguments

Howell & Ors, R. v [2003] EWCA Crim 486 (28 February 2003)
  1. …The principle of open justice leads inexorably to the conclusion that written skeleton arguments, or those parts of the skeleton arguments adopted by counsel and treated by the court as forming part of his oral submissions, should be disclosed if and when a request to do so is received.
See also:

JTI Acquisition Company (2011) Ltd v Revenue & Customs (PROCEDURE – application by a non-party for copies of skeleton arguments and written submissions before issue of dispositive decision) [2021] UKFTT 446 (TC) (25 June 202)

Witness Statements

Transcripts

Bates & Ors v Post Office Ltd ((No.3) “Common Issues”) [2019] EWHC 606 (QB) (15 March 2019)

26. However, neither party objected to [Nick Wallis, Journalist] being provided with the daily transcript at the end of each day, or the finalised version thereafter. [53] of Cape Intermediate Holdings v Dring makes it clear that although the proper means for a non-party to obtain a trial transcript is set out in CPR 39APD6, “if, as in this case, a private transcription service was provided at trial then the appropriate and most cost effective course of action is likely to be to seek a copy from the provider…..” This was not opposed by either the Claimants or the Post Office who were sharing the cost of the electronic trial bundle between them in any event. This meant that Mr Wallis, and by extension all those who read his reports (which would have included many of the hundreds of Claimants), had access to fully accurate passages of evidence and argument.

JR & B Farming Limited v Hewitt [2021] EWHC 1704 (Comm) (24 June 2021)
  1. In summary, the key points to note are that:
    (1) whatever the form of hearing, real time transcription requires the permission of the court and therefore a specific court order;
    (2) the court will frequently wish to regulate to whom any such real-time transcript may be disseminated;
    [MouseInTheCourt: ie the court has power to decide who should receive transcripts]

Public Hearings

General

Yalland & Ors v Secretary of State for Exiting the European Union [2017] EWHC 629 (Admin) (03 February 2017)
  1. The requirement that justice should be administered openly and in public is a fundamental tenet of our legal system. The administration of justice must be open to public scrutiny. This principle is inextricably linked with that of freedom of speech and in particular the freedom of the press and other media to report court proceedings: see A v BBC [2015] AC 588 per Lord Reed at paragraphs 23 to 26.
Attorney General v Leveller Magazine Ltd [1979] AC 440 per Lord Diplock at 450

As a general rule the English system of administering justice does require that it be done in public: Scott v. Scott [1913] A.C. 417. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.

Civil

Civil Procedure Rule 39.2 “General rule – hearing to be in public”
  1. The general rule is that a hearing is to be in public. A hearing may not be held in private, irrespective of the parties’ consent, unless and to the extent that the court decides that it must be held in private, applying the provisions of paragraph (3).

Criminal

Family

Court of Protection

See: https://openjusticecourtofprotection.org/

Insolvency

Rule 12.2(3) of The Insolvency (England and Wales) Rules 2016
  1. The hearing of an application must be in open court unless the court directs otherwise.

Open Justice Heroes

One Blackfriars Ltd, Re [2021] EWHC 684 (Ch) (23 March 2021)
  1. In order to promote transparency and public access to justice, following the agreement to hold the trial as a remote hearing, I made an order on 3 June 2020 in the following form:
    “Pursuant to section 85A (1)(a) of the Courts Act 2003 (as amended by the Coronavirus Act 2020) the Trial shall be broadcast by Sparq by means of a passive live stream to a bespoke web page created by Sparq. The webpage shall be accessible to the public without password or other restriction and the webpage address shall be published in the daily cause list and be available on request from the court office”
    The trial was thus available to be seen by any interested member of the public with access to the internet. According to data supplied by Sparq, the livestream was in fact watched by an average of around sixty people a day (and a peak of 428). This level of public access is far higher than would be achieved by allowing people to physically attend a hearing in the Rolls Building.