Release of court material: how open; how confidential?
Open justice depends on how open to the public (including journalists) are the court. Should parties, witnesses and others involved in the proceedings be named or remain anonymous? To what extent may a person who is not directly involved in the proceedings (a ‘non-party’) see court material either before the hearing of a case or afterwards. Two recent cases – Dring v Cape Intermediate Holdings Ltd  EWHC 1873 (QB) (16 July 2020, Picken J) and Duchess of Sussex v Associated Newspapers Ltd  EWHC 2160 (Ch) (5 August 2020, Warby J) – have dealt with release of court material, and the Sussex case, to a degree arising from Dring, deals with anonymity of non-parties whose names are involved in litigation.
The modern law on release of court documents can be said to date from 40 years ago with a joint speech – a rare example of a joint speech before the Supreme Court – from Lords Simon and Scarman in Harman v Secretary of State for the Home Department  1 AC 280,  2 WLR 338. The question in Harman was: to what extent should documents which had been read aloud in open court be copied to non-parties – in that case by Harriet Harman to David Leigh, a Guardian journalist. The judge, the Court of Appeal and a majority of the House of Lords held that a party to proceedings was bound by the parties’ ‘implied undertaking’ that disclosure of such documents amounted to a contempt of court. Harriet Harman, then a solicitor working for NCCL (now Liberty) was in contempt. Lords Simon and Scarman disagreed.
The law as it stood after Harman was explained by Lord Bingham CJ in Smithkline Beecham Biologicals SA v Connaught Laboratories Inc  EWCA Civ 1781,  4 All ER 498 at 506:
“[The minority in Harman] held that once documents had been read aloud in open court they were no longer confidential; that any duty of confidence ceased when material became public knowledge; and that maintenance of the rule favoured by the majority might well be contrary to European Convention Art 10. With reference to Scott v Scott  AC 417, and the principle that justice should be administered in public, Lord Scarman, speaking for the minority, said:
‘… 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.’”
“Use” of disclosed documents
The Harman decision was challenged before the European Commission of Human Rights. The challenge was amicably settled on an undertaking by the UK government to change the law so that it would no longer be a contempt publicise material contained in documents compulsorily disclosed in civil proceedings once those documents had been read out in open court. The undertaking lead to what became Rules of the Supreme Court 1965 Ord 24 r 14A. This has now been replaced by CPR 1998 r 31.22 – under the title “subsequent use of disclosed documents”. As relevant, r 31.22 says:
“(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –
(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;
(b) the court gives permission; or
(c) the party who disclosed the document and the person to whom the document belongs agree.
“(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public….”
Release of court material to non-parties
All this represents part of the court’s concerns to make open justice a reality. The concept is taken further by CPR 1998 r 5.4C which provides for “Supply of documents to a non-party from court records” as relevant as follows:
“(1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of –
(a) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it;
(b) a judgment or order given or made in public (whether made at a hearing or without a hearing), subject to paragraph (1B).
“(2) A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person….
“(4) The court may, on the application of a party or of any person identified in a statement of case –
(a) order that a non-party may not obtain a copy of a statement of case under paragraph (1);
(b) restrict the persons or classes of persons who may obtain a copy of a statement of case; [or]
(c) order that persons or classes of persons may only obtain a copy of a statement of case if it is edited in accordance with the directions of the court;…”
On release of court material to non-parties, Dring v Cape Intermediate Holdings Ltd  EWHC 1873 (QB) (16 July 2020, Picken J) is the next stage in a long-running case on release of document to a non-party. It has gone from a High Court Master and proceeded to the Supreme Court, finally as Cape Intermediate Holdings Ltd v Dring (on behalf of Asbestos Victims Support Groups Forum UK)  UKSC 38,  AC 629;  3 WLR 429 (29 July 2019). The Supreme Court agreed with the decision Court of Appeal which had allowed a leap-frog appeal from the Master. The Supreme Court repeated the Court of Appeal order that the question of release of certain of the court material should be restored to Picken J for him to say what should be released to Asbestos Victims Support Groups Forum UK (“the Forum”) where a case had been settled after trial before him, but before judgment.
Inherent jurisdiction of the trial judge
The Supreme Court agreed with the Court of Appeal that a judge – normally, if available, the trial judge – has an inherent jurisdiction to decide on release of material beyond that which is provided for in the rules. The Cape Intermediate v Dring case throughout has turned on what particular documents filed in the proceedings, and going beyond CPR r 5.4C (ie in the realms of inherent jurisdiction) can be released to Mr Dring on behalf of the Forum, in the original proceedings where asbestosis sufferers had settled their litigation with Cape Intermediate. On behalf of others affected by asbestosis the Forum wanted to see documents which had been produced in court. The master ordered a more or less blanket release.
The Court of Appeal held that the High Court had an inherent discretion to order release of the documents in question; but said the extent of release should be referred back to Picken J for him to decide how the court’s discretion should be exercised.
On what basis (if any) should the court therefore permit release of court material to a non-party given that the Court of Appeal and Supreme Court had held that the High Court has a discretion to do so? Picken J held that the question turned on whether release under the inherent jurisdiction would “advance the open justice principle” (see  EWHC 1873 (QB) at ).
“Advance of the open justice principle”
Picken J considered that the Forum’s application in this case was one where an interest group wanted to see documents based on a general enquiry by them. This was not enough, he thought, for him to say that on their application the open justice principle was advanced. He explained:
“ I am quite clear, in the circumstances, that a third party should not merely show that access to documents would be in accordance with the open justice principle but also that such access would advance the open justice principle. If the position were otherwise, and an applicant could merely insist on production of documents on the basis that this would be in accordance with the open justice principle, there would be nothing to stop anybody making an application and doing so in overly wide terms. That clearly is not what the Supreme Court (whether in this case or in [Kennedy v The Charity Commission  UKSC 20,  1 AC 455] or [A v British Broadcasting Corporation  UKSC 25,  1 AC 588]) can have contemplated would justify an application under the inherent jurisdiction.”
The lead case on release of documents, commented on extensively by Lady Hale in the Supreme Court in Cape Intermediate v Dring (above), is R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  EWCA Civ 420,  QB 618 (3 April 2012) (Guardian v Westminster) where Toulson LJ explained the open justice principle and ordered release of documents to the Guardian in relation to a magistrates’ court extradition hearing to enable the journalist the better to understand what had happened in court.
Guardian v Westminster: release of court material
In passages quoted by Picken J at  to  of his judgment, and in comment on Guardian v Westminster, Lady Hale in the Supreme Court in Dring  AC 629 said:
“ … 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. However, case after case has recognised that the guiding principle is the need for justice to be done in the open and that courts at all levels have an inherent jurisdiction to allow access in accordance with that principle. Furthermore, the open justice principle is applicable throughout the United Kingdom, even though the court rules may be different.”
Lady Hale continued
“ So what were those principles? The purpose of open justice ‘is not simply to deter impropriety or sloppiness by the judge hearing the case. It is wider. It is to enable the public to understand and scrutinise the justice system of which the courts are the administrators’ (para 79 of Guardian v Westminster). The practice of the courts was not frozen (para 80)…. The time had come to acknowledge that public access to documents referred to in open court was necessary (para 83). Requiring them to be read out would be to defeat the purpose of making hearings more efficient. Stating that they should be treated as if read out was merely a formal device for allowing access.”
Meghan Markle and her friends
The most recent instalment of the Duchess of Sussex (Meghan Markle (MM)) and Daily Mail litigation (Duchess of Sussex v Associated Newspapers Ltd  EWHC 2160 (Ch) (5 August 2020, Warby J), was primarily concerned with the anonymity of five friends of hers who had, confidentially, unknown to her and with guarantees of anonymity, given information supportive of her to a US publication. Their names had been referred to in court documents in the English proceedings. The answer to the anonymity of these friends involved a review of the law as summarised in CPR r 5.4C (as cited above), because their names were referred to in statements of case. How far could the friends remain anonymous?
The friends had given interviews subject to guarantees of confidentiality to a US magazine People. This article, but not their names, was referred to by the Mail in its defence to MM’s claim. In reply MM said she did not know of the interview; but that, anyway, the Mail’s summary of it was “completely wrong”. The Mail replied asking seeking information that “the friend” or friends to be identified (CPR 1998 Pt 18). The lawyers for MM filed a reply to the Pt 18 request. The reply identified the friends in a “confidential schedule”. The Mail proposed to publish information about this. Could the newspaper be prevented from publication of the names?
Sussex and the balance: open justice through “the prism of confidentiality”
In the Duchess of Sussex case, Warby J explained an important basis for assessment of the balance to be adopted in a decision of whether non-parties – including witnesses and experts – should have anonymity. The starting point must always be open justice; but this must be approached through “the prism of confidentiality” (see ). Where a party provides information under Pt 18, or that party tenders evidence which implies a duty of confidence, particular considerations apply and import obligations on the recipient of the confidential information (here the Mail). Warby J explained this as follows:
“ (2) The defendant has, as it seems to me, acquired the information in circumstances importing an obligation of confidence, subject only to any public interest that overrides that obligation. The claimant has expressly designated the information as confidential and clearly identified in her statement of case and, now, in evidence, the factual basis for doing so. I agree with the authors of Toulson & Phipps on Confidentiality (4th ed) when they say (at 20-081): ‘So far as the protection of third parties is concerned, a party may be required to disclose information in respect of which he owes a duty of confidence to someone else, if such information is relevant to the issues in the action. … The law would be deficient if the receiving party did not in such circumstances owe an obligation to the relevant third party not to use such confidential information otherwise than for the purpose for which it was provided.’”
In an assessment of the competing demands of open justice on the one hand, as against any request for anonymity:
“ The key question, therefore, is how to resolve the competing demands of confidentiality and open justice…. The preservation of anonymity must be shown to be necessary in the interests of the administration of justice. But there is more to it than that. This is not an exercise in assessing competing generalities. As ever, it is necessary to consider the weight of the specific factors that are engaged, applying an intense focus to the particular facts of the case.”
In the final analysis, after an “intense focus to the particular facts of the case”, the question must be whether the public interest in the open justice principle and in the administration of justice was outweighed by the public interest in maintaining issues of confidentiality. In Sussex Warby J said that, yes, as an interim measure, confidentiality outweighed open justice and therefore it trumped any right of the Mail to publish the names of the five friends.
Court material and anonymity for non-parties: law in a state of development
The law on these aspects of open justice – anonymity of parties and witnesses and release of court material to non-parties to understand a court hearing and after it – in civil proceedings generally and in family proceedings in particular, is in a state of development. The meaning of “advancing of the open justice principle” – the criterion by which Dring v Cape Intermediate was decided by Picken J – in itself implies a variety of meanings; whereas a decision on the balance of publicity (Art 10) as against confidentiality in an application for anonymity of a non-party, as in Sussex, will call for an infinity of variations according to the facts of the individual application.
In Cape Intermediate v Dring in the Supreme Court Lady Hale recalled with approval Toulson LJ’s opening words in Guardian v Westminster  QB 618:
“ Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes – who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said in a well-known passage quoted by Lord Shaw of Dunfermline in Scott v Scott  AC 417, 477: ‘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.’”
This is the open justice criterion by which cases such as Dring v Cape Intermediate and the advancing of the open justice principle must be judged. It is tempting to wonder whether Picken J’s cautious approach will survive the more expansive approach – in the result, at least – of the Court of Appeal in Guardian v Westminster.
12 August 2020
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