“extent and operation of the principle of open justice”
The President of the Supreme Court rightly stated that this case is “about the extent and operation of the principle of open justice”. There were three issues:
- does a court rule – allowing the court to supply documents to a non-party from court records – prescribe the power to order access to all documents that have been filed, lodged, or held at court;
- is access to court documents governed solely by the court rules, or is there an inherent power; and
- if there is such a power, how should it be exercised?
Purposes of running a justice system v open justice
On the first issue, Lady Hale found that “records of the court” means “those documents and records which the court itself keeps for its own purposes.” These “are completely different from the purposes for which non-parties may properly be given access to court documents.” Accordingly, “current practice in relation to what is kept in the records of the court cannot determine the scope of the court’s power to order access to case materials”.
Inherent power to order access to all court documents
Lady Hale opined on the inherent power to order access to all court documents:
“There can be no doubt at all that the court rules are not exhaustive of the circumstances in which non-parties may be given access to court documents. They are a minimum and of course it is for a person seeking to persuade the court to allow access outside the rules to show a good case for doing so.”
The Supreme Court was in agreement that “there should be no doubt about the principles. The question in any particular case should be about how they are to be applied.”
How the principles are to be applied
First, “to enable public scrutiny of the way in which courts decide cases – to hold the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly.” Second, “to enable the public to understand how the justice system works and why decisions are taken.” To do so, the public must be able to understand the issues, evidence, and submissions.
As much of this is reduced into writing before the hearing takes place: “It is difficult, if not impossible, in many cases, especially complicated civil cases, to know what is going on unless you have access to the written material.” This does not mean that the public at large have a right of access because “although the court has the power to allow access, in general the applicant has no right to be granted it.” It is for an applicant to explain why he seeks it, and why it is that allowing the application will advance the principle of open justice.
Good reasons for dismissing the application include: 1) “national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality”; 2) “practicalities and the proportionality”; and 3) that it is an application for “disclosure of a marked up bundle without the consent of the person holding it”.
“consultative process in which all the interests are represented”
The bodies responsible for framing the court rules were enjoined “to give consideration to the questions of principle and practice raised by this case.” This includes “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”. The appropriate forum for resolving these issues is not the highest court in the land, it is “a consultative process in which all the interests are represented”.