Court documents: Part 2 – the open justice principle

Hearing documents and the open court principle

 

Part 1 of this series has looked at who may attend family courts and what types of family court hearings. This Part deals with the question of: why should documents be made available for those who attend any court? Part 3 will deal with the important case of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group) [2018] EWCA Civ 1795 (‘Cape Intermediate v Dring’); will analyse the documents concerned; and looks at how these may be available for release to non-parties. Finally, Part 4 will apply the law, as explained in the first three Parts, specifically to documents in family proceedings and to non-parties who may attend private hearings; or who may want to see documents later (eg journalists, lawyers, academics or family members – even perhaps a child as the child gets older).

 

In this series documents are categorised as:

 

• Court documents – Documents ‘from the court records’ (as explained in Cape Intermediate v Dring);
• Hearing documents – Court documents for which a non-party is entitled to apply: eg to make sense of the proceedings or for a particular journalistic purpose (eg skeleton arguments, parties statements, expert reports etc).
• Disclosed documents – Use, or other release, of documents whose production has been compelled by disclosure rules.
• Trial documents – Documents prepared for the judge and at a court hearing.

 

The background to Cape Intermediate v Dring and a review of much that it decided will be considered in Part 3. In approaching his determination of the appeal as to whether and if so what documents from civil court proceedings might be released to non-parties, Hamblen LJ relied extensively on the case law underpinning the open court principle. Since this approach to open justice may to be central to any argument in family proceedings that documents be released this Part will deal with its context in court proceedings.

 

He started by setting out some ‘Well known statements of the principle’ (at [27]) and emphasising that ‘the common law has long recognised the importance of the constitutional principle of open justice’. He drew attention in particular:

 

[27] … Well known statements of the principle and its rationale include:

(1) Lord Shaw in Scott v Scott [1913] AC 417 at 477 (citing Jeremy Bentham):

“Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”

(2) Lord Diplock in Home Office v Harman [1983] AC 280 at p303:

“…the reason for the rule is to discipline the judiciary – to keep the judges themselves up to the mark – the form that it takes [is] that justice is to be administered in open court where anyone present may listen to and report what was said”.

 

He concluded his short introduction to the open justice principle by reference (at [28]) to the central modern case to this subject: R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618. If there were any doubt on the subject, Cape Intermediate v Dring confirms that the Guardian v Westminster case applies equally to documents in criminal as to civil proceedings. He recalls Toulson LJ’s words where he spoke of the open justice principle:

 

‘[28] … Being “at the heart of our system of justice and vital to the rule of law” and [that he] explained how it enables the rule of law to be policed through “the transparency of the legal process”. He stressed at [2] that it is “not only the individual judge who is open to scrutiny but the process of justice”. It ensures that “judges are accountable in the performance of their judicial duties” and “maintains public confidence in the impartial administration of justice by ensuring that judicial hearings are subject to public scrutiny”.’

 

Later in his judgment Hamblen LJ returns to Guardian v Westminster, when he considered the inherent jurisdiction of the court to order release of documents. He explained that the case concerned a Guardian journalist’s request of a magistrate, refused by her, that he be permitted to read documents the court had read in an extradition case:

 

‘[85] …. [The Guardian] contended that these were documents that would have been pre-read, that it was not possible to understand the full case against those extradited without seeing the documents, and that they were needed for the journalistic purpose of stimulating informed debate about matters of public interest. The [Guardian’s] application was granted on appeal….’

 

Hamblen LJ pointed out that Toulson LJ had said much on the subject of the open justice, such as (quoted by Hamblen LJ at [85]):

 

‘[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.

[70] Broadly speaking, the requirements of open justice apply to all tribunals exercising the judicial power of the state.’

 

Release of hearing documents

 

Toulson LJ and Hamblen LJ both draw particular attention to a series of cases when it comes to open justice and release of documents; and especially the need for the court to make sure that anyone attending a case is not kept from understanding what is happening because increasingly courts rely on written information read privately by the judge (eg witness statements and expert reports, skeleton arguments and position statements).

 

Toulson LJ referred to a line of authority starting with Lord Scarman – ‘a thinker ahead of his time’ – in Home Office v Harman [1983] 1 AC 280 at 316 on why ‘justice should be done openly’ (at [33]). Lord Scarman said:

 

‘Reasonable expedition is, of course, a duty of the judge [said Lord Scarman]. But he is also concerned to ensure that justice not only is done but is seen to be done in his court. And this is the fundamental reason for the rule of the common law, recognised by this House in Scott v Scott [1913] AC 417, that trials are to be conducted in public. Lord Shaw referred with approval, at 477, to the view of Jeremy Bentham that public trial is needed as a spur to judicial virtue. Whether or not judicial virtue needs such a spur, there is also another important public interest involved in justice done openly, namely, that the evidence and argument should be publicly known, so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification. When public policy in the administration of justice is considered, public knowledge of the evidence and arguments of the parties is certainly as important as expedition: and, if the price of expedition is to be the silent reading by the judge before or at trial of relevant documents, it is arguable that expedition will not always be consistent with justice being seen to be done …’

 

Toulson LJ continued (at [34]) by reference to Lord Bingham CJ in Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498:

 

‘Since the date when Lord Scarman expressed doubt in Home Office v Harman as to whether expedition would always be consistent with open justice, the practices of counsel preparing skeleton arguments, chronologies and reading guides, and of judges pre-reading documents (including witness statements) out of court, have become much more common. These means of saving time in court are now not merely permitted, but are positively required, by practice directions. The result is that a case may be heard in such a way that even an intelligent and well-informed member of the public, present throughout every hearing in open court, would be unable to obtain a full understanding of the documentary evidence and the arguments on which the case was to be decided.… As the court’s practice develops it will be necessary to give appropriate weight to both efficiency and openness of justice, with Lord Scarman’s warning in mind….’

 

Lord Bingham concluded with the point which, 20 years later, the rules have still not clearly answered (though Hamblen LJ has gone a long way to doing so). He continued:

 

‘… Public access to documents referred to in open court (but not in fact read aloud and comprehensibly in open court) may be necessary, with suitable safeguards, to avoid too wide a gap between what has in theory, and what has in practice, passed into the public domain.’

 

Part 3 will consider what was said in Cape Intermediate v Dring and especially in the light of the above open justice considerations.

Court documents: Part 1 – to make sense of family court proceedings

Attendance at private family hearings

 

If you are interested in a family case – say, as journalist, an academic, a lawyer, a friend or relation of one of the parties or a lay person who takes an interest in law; even perhaps a mature child who wants to find out more about your care proceedings – you can probably get into court to listen to the case (Family Procedure Rules 2010 (FPR 2010) r 27.11(2)(f)-(g) and its accompanying practice direction, PD27A). FPR 2010 r 27.10 says all family cases (except where stated otherwise) are heard ‘in private’. That said, certain defined individuals – or non-parties – can get in to hear the case. But can you see documents after the case has been completed?

 

Documents non-parties can hope to see – for example to help them to understand the case, or learn about it afterwards – has recently been fully considered by the Court of Appeal in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group) [2018] EWCA Civ 1795 (‘Cape Intermediate v Dring’). And in one of the main cases considered in this series, the Guardian wanted to write up a case after the hearing; and successfully – on appeal to the Court of Appeal – managed to get to see the necessary documents (R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618). The same would apply to anyone – academic, lawyer etc – who for sound reason wanted access to hearings documents. A fee for photocopying fee may be required: as Hamblen LJ said in Cape Intermediate v Dring:

 

‘[113] The court may order that copies be provided of documents which there is a right to inspect, but that will ordinarily be on the non-party undertaking to pay reasonable copying costs, consistently with CPR 31.15(c)….’

 

For the avoidance of doubt it must be stressed at the outset of this series: the same common law applies to all proceedings such as civil, criminal, family and in tribunals; but different procedural rules apply to each. Common law, of course, overrides procedural rules. Cape Intermediate v Dring was concerned with Civil Procedure Rules 1998 (CPR 1998) and civil proceedings. Family proceedings (governed by FPR 2010) may be different form CPR 1998 in terms of procedure. But the law is the same; and often that law, which governs family proceedings, is defined by CPR 1998 (see eg the ‘implied undertaking’ and CPR 1998 r 31.22 which certainly governs family proceedings).

 

Following from that, it is trite law that procedural rules regulate the law (in this case, the common law), but cannot change it (see eg British South Africa Co v Companhia de Mocambique [1893] AC 602 per Lord Herschell LC at 628). Cape Intermediate v Dring sets out the common law; and, though it applies to CPR 1998 and civil proceedings it must also apply, where appropriate, to family proceedings.

 

Attendance at a family court: common law and rules

 

If you come into one of the categories of individuals in r 27.11(2)(f)-(g), who can go observe a private family court, what can you read up about the case beforehand; or afterwards if you are otherwise legitimately interested in the case? Mostyn J says the press are entitled to see nothing (Appleton & Gallagher v News Group Newspapers Ltd & PA [2015] EWHC 2689 (Fam), [2016] 2 FLR 1) and by reference to r 29.12; but without reference to R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 (to be reviewed in Part 2). As will be explained in Part 4, this is unlikely correctly to represent the law in 2018. And, of course, Mostyn J does not reflect on what is the common law which applied in Appleton, and whether r 29.12 is compliant with it.

 

If you are entitled to any documents, how do you get them; and who will send them to you? First, who can attend a family courts hearing? No one is allowed into a family court except the parties, their representatives, witnesses, ‘officers of the court’ and so on (r 27.11(2)(a)-(e)). In addition, r 27.11(2) says that for hearings in private the following may also come into court (‘court attenders’):

 

‘(f) duly accredited representatives of news gathering and reporting organisations;

(ff) duly authorised lawyers attending for journalistic, research or public legal educational purposes; and

(g) any other person whom the court permits to be present.’

 

The words in italics have been added by a further practice direction, Practice Direction 36J – Pilot Scheme: Transparency (attendance at hearings in private). This is intended to enable ‘legal bloggers’ to attend court (subject to some convoluted requirements as to their documents and credentials which ‘any other person’ need not trouble with), as the media are able to do; though it is not clear why lawyers and academics who want to attend court cannot do so under the much simpler (ie no documentary requirements) para (g). Nor is this the place to ask the power of the President of the Family Division to amend delegated legislation (a court rule) with sub-delegated legislation (a mere practice direction).

 

This Part looks at who may attend family courts, gives a couple of examples of the problems in practice, and alludes to the types of family court hearings involved. Why should documents be made available for those attending such courts? To answer this question, Part 2 looks at release of documents in the context of the open court principle. Part 3 looks at Cape Intermediate v Dring, the case; analyses the documents concerned; and looks at how these may be available for release. Finally, Part 4 will apply the law, as explained in the first three Parts, specifically to family proceedings and to those who may attend private hearings; or who may want to see documents later (eg journalists, lawyers, academics or family members – even perhaps a child as the child gets older).

 

Court documents: towards a classification

 

So what can any of these court attenders expect to see and before the hearing? This being family proceedings no one will be surprised to hear that the answer is unclear. Cape Intermediate v Dring has gone some way to explain the position in civil proceedings (which does not include family cases). One thing this note will seek to do is to explain how far the position in Cape Intermediate v Dring may affect family cases. Because civil proceedings are (mostly) in open court their rules are different.

 

The following is a classification of the categories of document concerned, which will be used in this article, and are more fully explained in Cape Intermediate v Dring as explained below:

 

• Court documents – Documents ‘from the court records’ for which a non-party is entitled to apply as a matter of formality (CPR 1998 r 5.4C; CPR 1998 PD5A para 4.2A, and as explained in Cape Intermediate v Dring);
• Hearing documents – Court documents for which a non-party is entitled to apply: eg to make sense of the proceedings or for a particular journalistic purpose (eg skeleton arguments, parties statements, expert reports etc).
• Disclosed documents – Use, or other release, of documents whose production has been compelled by disclosure rules (CPR 1998 r 31.22(1)), and whose release or other use the law restricts or may prevent, in cases of breach (r 31.22(2)).
• Trial documents – The composite set of documents prepared for the judge and at a court hearing.
• Other material – Documents and information which a party is entitled to publish about proceedings where a case has been heard in private (see eg Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 1 FLR 565).

 

There are three categories of family courts hearing. Each is likely to have different rules (though the law is not clear on this):

 

• Open court hearings (eg divorce, committal proceedings, domestic abuse cases under Family Law Act 1996 Part 4). Open justice principles apply to these hearings and the same rules are likely to apply as explained in Cape Intermediate v Dring.
• Hearings in private where media representatives and other can attend (r 27.11(2)(f)-(g)): so long as anonymity is preserved the Cape Intermediate rules could apply.
• Other hearings in private (see eg Clibbery v Allan (above)).

 

To that list must be added those who may want to see documents after the hearing to who the principles considered here apply (eg the journalist who appealed successfully to the Court of Appeal in Guardian News; a child who later – perhaps as an adult – wants to know more about his or her care proceedings).

 

Release of documents: the problem in the real world

 

In Tickle v Council of the Borough of North Tyneside & Ors [2015] EWHC 2991, [2016] Fam Law 1011, Bodey J Louise Tickle applied to the court for permission to report the proceedings. The local authority originally opposed this, and asked for a reporting restrictions order. The mother, who had published information about the proceedings already, supported Tickle. Late in the proceedings the local authority agreed to the application which enabled the parties to come up with an order which Bodey J approved. In the event Tickle was able to have access to the court file in full. Even in civil proceedings she might not be allowed this (after Cape Intermediate v Dring at [88]) unless the court so ordered.

 

The problem of release of even hearing documents was touched on by Lucy Reed, a barrister, in a recent blog when she attended a Court of Protection:

 

‘Part of the difficulty for me as an observer was the lack of documentation, which won’t apply in quite the same way to parties. Although the press are entitled under the CoP Rules and PDs to sight of certain documents, there is no such automatic right for other observers, although I suspect if we had asked no particular objection would have been made. The hearing was made harder to follow by references to this position statement and that position statement,…’

 

Why should any documents be released? And what documents can be released anyway? These questions will be considered in Parts 2 and 3.