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UK government launches consultation on open justice

Out-Law News | 16 Jul 2018 | 4:58 pm | 2 min. read

The UK government is seeking to clarify the rules governing when litigation should be heard in private, in a bid to safeguard the principles of open justice.

The Ministry of Justice (MOJ) has issued a consultation paper (23 page / 334KB PDF) seeking views on changes to Part 39 of the Civil Procedure Rules (CPR), which directs the conduct of hearings. The changes are designed to clarify open justice requirements in relation to hearings in private, as well as reporting restrictions.

The revised rule makes it clear that hearings should be held in public unless the court is satisfied that one of several conditions is met, such as in matters of national security. The proposed new wording states that the court “must consider any duty to protect or have regard to a right to freedom of expression which may be affected” by holding a hearing in private.

The new rule states that hearings must be held in private, either partially or wholly, if the court is satisfied that this is necessary to secure the proper administration of justice. The old rule said hearings “may” be private.

The proposals redefine ‘hearings’ to expressly include those made by telephone, video or other simultaneous two-way communication, and clarifies that these are subject to the same rules as courtrooms.

The MOJ is proposing to introduce a duty on the court to make a copy of the order directing the hearing to be heard in private available online. Any person who is not a party to the proceedings, such as the media, would then be able to apply to set it aside.

The government is also proposing to require parties communicating with the court to copy the other side in on those communications. The provision is designed to stop the trend of one side making substantive representations without informing the opposing party.

The consultation also introduces provisions allowing for a party represented in a case to share a note of the proceedings with unrepresented parties. The change is designed to overcome delays that parties can have in obtaining court transcripts.

All hearings will be recorded, unless the judge directs otherwise, although no unofficial recording equipment would be allowed without the court’s express permission.

The consultation follows the principles set out by the English High Court in a 2010 privacy injunction hearing, when the judge said that the test for a hearing in private was one of necessity and not discretion. Whether or not a hearing should be heard in public relied on public interest outweighing a party’s right to a private life, the judge added.

It also comes less than a year after three non-governmental organisations won a ruling that arguments over the cost caps in environmental cases should be heard in private, in order to protect confidential information relating to financial matters. The new consultation also considers the necessary change to the practice direction required to implement the court’s recommendation.

The consultation is open until 23 August. Although the consultation is being led by the MOJ, the rule changes have been drawn up by the Civil Procedure Rule Committee, which oversees civil court practice.