Non-party access to Court Documents

POSTED BY Stephanie Nicolson
Karl Stolberger
15 February 2018

posted in Confidentiality | Litigation | Privacy | Media

VIEWED 493 TIMES

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Open Justice vs commercial sensitivity, privacy and a fair trial

We’ve recently been involved in successfully opposing a spate of applications by non-parties wanting to inspect court files relating to proceedings involving our clients.

Open justice is an important part of our legal system. Other than in exceptional cases trials are carried out in open court and any member of the public may attend, however, a party to litigation often wishes to ensure that documents filed and/or referred to in court remain shielded from the public gaze. Formal court orders and judgments are generally freely available to the public, but if non-parties wish to see most other documents filed in a proceeding they must apply for permission. These kinds of applications are frequently made by the media wanting better coverage, by those with some private interest in a proceeding (often fishing for information to use against one of the litigating parties elsewhere), or by lawyers or law students with a professional or academic interest. Whether or not to allow a non-party access is a balancing exercise for the court.

On 1 September 2017 the Senior Courts (Access to Court Documents) Rules 2017 came into force aiming to simplify and clarify the law in this area, but not to substantively alter it. The new Rules set out the matters to be taken into account by the court in determining whether to grant access to documents. These are (with no hierarchy of importance):

  • the orderly and fair administration of justice;
  • the right of a defendant in a criminal proceeding to a fair trial;
  • the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice. (This item was brought in by the new Rules);
  • the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person;
  • the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions);
  • the freedom to seek, receive, and impart information;
  • whether a document to which the request relates is subject to any restriction under rule 7 (which lists certain enactments where parties might have special privacy concerns); and
  • any other matter that the Judge thinks appropriate.

The timing of the application within the lifespan of a proceeding is also important, with a clear demarcation between the pre-hearing, in-hearing, and post-hearing phases. In particular, a greater level of access will be permitted during the hearing, from its start to the delivery of judgment. Both before and after this time, the parties’ privacy interests are given more weight.


In responding to what may well have been the first application under the new Rules, we were able to successfully oppose an application for media access on the basis of the length of time before the hearing, the early stage of the pleadings and the quantity of confidential and commercially sensitive financial information which sat on the court file. Given the appetite of news media in particular for stories involving revelations of conflict and alleged wrong doing, we expect this is an area that will keep the courts well occupied.



Image courtesy of Surrey County Council News

POSTED BY Stephanie Nicolson
Karl Stolberger
15 February 2018

posted in ConfidentialityLitigationPrivacyMedia

VIEWED 493 TIMES

PERMALINK

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