Judge: UK ‘open justice’ does not require pre-hearing document disclosure

The High Court refused the BBC's application, as a non-party, to obtain copies of two witness statements in a case brought by Mr Saifullah Ghareb Yar against the British defence secretary.

Saifullah applied for a judicial review after four members of his family were killed by British armed forces in Afghanistan in 2011, arguing that their deaths were not properly investigated as required under the European Convention on Human Rights (ECHR).

Representatives for the secretary of state have argued that the deaths occurred outside the ECHR’s jurisdiction, but that a sufficient investigation still took place.

The BBC applied to obtain copies of two witness statements prepared in advance of the final hearing, which was still some months away.

Both witness statements had been referred to during two separate interim hearings.

At the High Court, the BBC’s representatives cited a 2013 legal precedent, when the Court of Appeal agreed with Guardian News and Media Ltd that requests by non-parties for copies of documents that have been placed before a judge or referred to in proceedings in some material way in open court ought to be allowed.

But Mr Justice Swift said that in the present case there was only a passing reference to one of the witness statements at the first interim hearing, and the reference was not material to the applications decided by the court.

More extensive references were made to both witness statements at the second interim hearing, but only to decide whether further evidence was required.

In his judgment, Mr Justice Swift said that while the premise of the open justice principle is that it is in the public interest for non-parties to have access to documents used in court so they can better understand the proceedings, he was not convinced that the documents should be supplied in this case.

He said the precedent set in the 2013 Court of Appeal case “concerned requests for documents made after a final hearing had taken place”, rather than before.

Mr Justice Swift added that the open justice principle “is not engaged until the court is called on to consider the evidence for the purpose of deciding issues in the case”.

Michael Fenn, litigation expert at Pinsent Masons, said: “Overall, this decision is welcome for litigating parties concerned about confidentiality and publicity, as it shows that the courts will carefully consider requests for access to court documents even when made by reputable journalists, and in particular will not generally allow third parties to access witness statements prepared for trial before the witness in question has actually been called to give evidence.”

“However, parties should remain aware that decisions in this area are fact-specific, with requests from journalists often looked upon favourably by the courts. As a result, parties or potential parties to litigation who are concerned to protect confidential information should take early advice on whether there are any options available to them to restrict public access to documents filed at court or to court hearings themselves,” he said.

“It may also be appropriate to explore confidential methods of dispute resolution, such as arbitration or, in the context of court litigation, settling the dispute through confidential negotiations or mediation,” Fenn added.

Charlotte Evenden, litigation expert at Pinsent Masons, said: “The judge makes clear in his judgment that there is no principle of public policy that requires early disclosure to non-parties of documents prepared for the purpose of a final hearing or trial, including if the non-party is a journalist. He is clear in his view that witness statements are not to be treated as a resource for journalistic endeavour, which could undermine their importance in aiding the court’s resolution of legal disputes.”

“The case also makes clear that, while there is previous case law showing that courts will often be amenable to requests for access to court documents made by journalists, the court will nonetheless take care in determining such requests on their facts. The court will be mindful that the advancement of public interest journalism is not the same as the realisation of the open justice principle, and that the open justice principle should not be stretched as a concept to provide the means for journalistic preview of what is yet to happen in the case,” Evenden added.