Out-Law News | 25 May 2021 | 2:56 pm | 4 min. read
Simon Goodley, a journalist at The Guardian, had sought access to a report which purported to show accounting fraud on the part of online retail business The Hut Group (THG), ahead of an earlier planned flotation on the stock exchange. Goodley was working on a series of articles about the changing corporate culture at companies like THG, which was once again preparing for flotation.
The report had been prepared in connection with, and formed a central part of the findings in, litigation which took place in 2014, and THG sought to resist production on the grounds that Goodley’s application was not made “in pursuit of the principle of open justice … but rather for other journalistic purposes”. However, Mr Justice Calver granted the declaration sought by Goodley, on the grounds that the ‘open justice’ principle was broad enough to cover proper journalistic purposes.
In his judgment, Mr Justice Calver referred to the Supreme Court’s 2019 decision in Cape v Dring, including Lady Hale’s wide definition of the open justice principle. The Supreme Court, in a unanimous decision, ruled that third parties should be permitted to access documents placed before a judge and referred to at a public hearing as the default position provided that they have a good reason for doing so; that there are no competing principles which outweigh this; and that granting the request will not be impracticable or disproportionate.
Lady Hale described the principal purposes of the open justice principle as two-fold: to enable public scrutiny of the way courts decide cases, and to enable the public to understand how the justice system works. She recognised, however, that the open justice principle may well also have other purposes.
Parties to litigation need to think carefully before including confidential or sensitive information in court documents, and consider confidentiality at the earliest stage.
Mr Justice Calver said: “[T]he court has the power, as part of the open justice principle, to allow a journalist access to a document which has been referred to in open court and which he/she requests for a proper journalistic purpose, unless affording access to the document is outweighed by the risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others”.
“Very often, a proper journalistic purpose will fall within one of Lady Hale’s two principal purposes of the open justice principle [in the Cape v Dring case]. But even if it does not, in my judgment the open justice principle will nonetheless typically be advanced by disclosure to a journalist in pursuit of a serious journalistic story of a document referred to in open court which may be germane to that story. It will then be for the respondent to demonstrate that disclosure of the document may cause harm to the judicial process or the legitimate interests of others,” he said.
Commercial litigation expert Emilie Jones of Pinsent Masons said: “While it is necessary for someone seeking access to such documents to demonstrate that this will advance the principle of open justice by which the courts operate, the judge gave that principle a broad interpretation”.
“In many cases, the reason for seeking access will be to gain a better understanding of why a case has been decided in a particular way, but there may be other reasons for granting access too. The media are often particularly well-placed to demonstrate a good reason for accessing documents,” she said.
In this particular case, THG did not suggest that disclosure of the report posed any risk of harm to either the judicial process or its own interests, Mr Justice Calver said. He added that the length of time that had passed since the previous judgment was irrelevant, as “its subject matter … has become a matter of current public interest by reason of recent events”.
“The fact that the documents sought by the journalist related to an earlier fraud, which was undoubtedly a sensitive matter, did not weigh against allowing non-party access,” said commercial litigation expert Andrew Herring of Pinsent Masons. “Indeed, the judge recognised that the journalist’s aim of seeing how companies deal with the discovery of fraud ahead of a planned flotation was in the public interest and within the open justice principle.”
“While delay will be a factor against granting access in some cases, here the passage of time was found not to undermine the journalist’s application because the subject matter had become a matter of current public interest in light of the flotation of THG. In addition, a document may not need still to be held on the court file in order for access to be directed: in this case, the document was to be provided from THG’s solicitors’ files,” he said.
On a procedural note, the judge also ruled that contested applications for third party access to documents of this nature should always be determined by way of an oral hearing and not ‘on the papers’, as the parties had proposed in this case. This is because of “the complexity of the balancing exercise that must be conducted by the court”, he said.
Emilie Jones said that the rules around third party access to court documents may be changing, as the Civil Procedure Rules Committee is planning to review the rules in light of recommendations made by the Supreme Court in Cape v Dring.
“However, while this exercise will hopefully provide greater clarity on the relevant rules and principles, in my view it is unlikely to substantively narrow the circumstances in which access may be granted,” she said.
“As a result, parties to litigation need to think carefully before including confidential or sensitive information in court documents and, where it is necessary to include such material, consider at the earliest stage whether there are any measures which can be put in place to protect confidentiality, such as by applications to the court that certain documents should not be available for public inspection or that hearings should take place in private. Parties who are particularly concerned about privacy should consider alternative, private ways of resolving disputes, such as arbitration or mediation, and may wish to provide for this in contracts,” she said.
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