An open and shut case

Posted on 13th Jun 2011 in Open Justice

The principle of open justice is our guarantee of judicial accountability. It is also the best way of ensuring that those caught up in the web of litigation are treated fairly and, where, necessary, the wrongdoer is villified while the rightdoer is vindicated.

Law reporting has always played an essential role in maintaining that principle. Justice must not only be done, it must be seen to be done. Court reporters are the “watchdogs of justice” (in the words of Lord Denning MR), who record for posterity the decisions which affect not only the litigants in the cases being decided but – through the case by case development of the common law – affect future cases involving other litigants.

Recent events have brought this process into sharp relief. But before I talk about superinjunctions, let me mention some other recent cases involving issues of openness and scrutiny.

This case is closed Renaissance Capital Ltd v ENRC Africa Holdings Ltd, a decision of Sir Robert Nelson sitting in the Queen’s Bench Division on 7 April 2011, is only available (to paying subscribers) as a Lawtel/Westlaw summary. There is no freely accessible transcript on Bailii and there almost wasn’t a judgment at all. That is the point. The parties wanted it all hushed up, no doubt for sound commercial reasons.

What those reasons may have been we can only guess. No record of the subject matter of their dispute is available. What we know is that, following a ten day trial, and while the judge was preparing his judgment, the parties (having perhaps sensed the way the forensic wind was blowing) began to negotiate a settlement. When they were sent the draft judgment in the usual way, they applied to the judge to refrain from handing it down. Having concluded their negotiations, they presented the judge with a draft order and requested him to keep his judgment to himself.

Giving judgment on the application (but not, crucially, the substantive dispute) Sir Robert Nelson held, following Prudential Assurance Co Ltd v McBains Cooper [2000] 1 WLR 2000, that he had a discretion not to publish judgment even after it had been sent in draft to the litigants, and that on the facts such an exceptional course was justified. However, he recognised that there was a presumption that a judgment, once drafted, should be published so that the public could see it. A judgment was not just for the parties and any third parties such as witnesses caught up in case: it was also for the development of case law, and to allow for judges’ work to be scrutinised. However, in the present case there were no legal issues that would develop the law or assist in the settlement of future commercial disputes; nor were there any factual issues, such as findings of fraud, which it would be wrong to cover up. In short, the public interest (in open justice) did not outweigh the parties’ private interests (in furtherance of which his Lordship also declined to make public even the order agreed between them). So it was a case of “least said, soonest mended.”

A blow for freedom (of the press) A more recent case which went the other way (ie in favour of openness) was In re X, Y and Z (Morgan intervening) v A Local Authority [2011] EWHC 1157 (Fam) in which Sir Nicholas Wall, President of the Family Division, ruled that a medical expert, “Dr M”, who had been heavily criticised by the judge below (Judge Bellamy sitting as a High Court judge) in care proceedings in which all the parties including the local authority had been anonymised, should nevertheless be named. The application to name him had been made by a journalist, Brian Morgan, who thought the issues raised by the case ought to be publicly discussed.

The President took into account the fact that the judge had criticised Dr M without giving him an opportunity to defend himself, and the importance of encouraging medical experts such as paediatricians like Dr M to continue to act in such cases without fear of criticism or indeed the not uncommon threat of personal violence. He concluded that Dr M should nevertheless be named and his report made public in this case, provided that he was given (as Mr Morgan had promised to do) an opportunity to put his side of the matter.

The case raised important issues of transparency in family justice generally, the President said. There needed to be a debate about the quality and content of expert evidence, but it was just as important that such a debate should be informed. Giving guidance for furture cases, he said at para 94:

I would therefore like to see a practice develop, in which expert reports would be routinely disclosed, and the media able to comment both on the report and on the use to which they were put in the proceedings. This would mean that the views of the judge on the expert evidence would also be disclosed.”

His Lordship concluded by reminding the media of their responsibilities, quoting the warning of Lord Hobhouse of Woodborough in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 238:

No public interest is served by publishing or communicating misinformation.”

Too much (mis)information

Both the above cases were or will be reported. The un-parliamentary name-calling, howls of protest (from the watchdogs) and the rash of delirious twitterings that were such a feature of the recent epidemic of super-injunctivitis were, I would suggest, symptoms of a deeper unease about the lack of public scrutiny, rather than simply of an unhealthy obsession with the (mis)deeds of banking buccaneers or frolicking footballers.

It was not so much the fact that these matters had been kept (albeit temporarily) secret, but the processes by which that had happened. There was a feeling that something was going on behind closed doors, and that what this amounted to was the creation, by judges, of a new law of privacy (interpreted as blanket secrecy), which ought to be a matter for Parliament.

Much of the comment was ill-informed, if not actually amounting to the kind of “misinformation” Lord Hobhouse may well have had in mind. For, as the media lawyer Mark Warby QC attempted quite reasonably to explain in a discussion with Adam Boulton on Sky News, we already have a law of privacy, created by Parliament in the Human Rights Act 1998 and [article 8 of] the Convention to which the UK has signed up, and if we want to override that we would not only have to repeal that Act but also withdraw from the Convention itself. Unfortunately Warby’s fairly sensible comments were overshadowed by the rather crude outburst by the blogger Guido Fawkes, also taking part in the discussion.

The development of a law of privacy on a case by case basis would be a matter of legitimate public interest, if that were really what was happening, though not for the reason given by the critics. (Of course people are wrong to suppose that only Parliament can make new law.) The problem is that people don’t quite know whether or not that is what is happening, or whether (as the judges see it) each case is simply being decided on its merits, in a delicate balancing act between conventional article 8 privacy rights and article 10 freedom of expression.

Perhaps that’s why the decisions ought to be available, however redacted, so people could judge for themselves. The accurate reporting of such decisions, for all the reasons already discussed, but most particularly because of the need (indeed the duty) to record those cases which do set precedents, is crucial. Then perhaps we could have a well informed and unhysterical public debate.