ACCESS TO COURT DOCUMENTS
A question we are frequently asked by clients involved in litigation before the Irish High Court is whether non-parties to the proceedings can access their documents which have been opened in Court. To answer this question, a distinction must be drawn between (i) documents filed in the Central Office of the High Court ("the Central Office") but which have not yet been opened in Court; and (ii) documents filed in the Central Office which have been opened in Court.
DOCUMENTS FILED IN THE CENTRAL OFFICE, BUT NOT OPENED IN COURT
To initiate proceedings before the Irish High Court, certain documents (e.g. a summons, a statement of claim) must be filed in the Central Office. If defending the claim, the defendant/ respondent is also required to file certain replying documentation. Unless and until these and other documents are opened in open Court, they cannot be accessed by a person who is not a party to the proceedings, unless they have a letter of consent from the parties to the proceedings.
DOCUMENTS FILED IN THE CENTRAL OFFICE AND OPENED IN COURT
If proceedings progress to hearing, or if there is an interlocutory motion, certain documents will be opened in Court i.e., they will be read into the Court record. The documents may not necessarily be read word for word, beginning to end. A document may be taken to have been opened in open Court where, for example, reference is made in open Court to relevant passages from the document and some of the passages are read in part or in full, or where the judge has read the document in advance and has indicated that he is treating it as having been opened in Court.
In Allied Irish Bank plc v Tracey (No 2)the High Court held that nonparties to the proceedings are entitled to access documents which have been freely opened in open Court and in respect of which there are no reporting or other restrictions. The Court said this is "simply part and parcel" of the requirement, set out in the Irish Constitution, that justice be administered in public.
This potentially means that affidavits and other documents which might make reference to commercially sensitive or confidential information can be accessed by non-parties to the proceedings once they have been opened in open Court, unless specific reporting or other restrictions have been directed by the Court.
The decision of the High Court in Tracey is currently under appeal.
POSITION PENDING THE DETERMINATION OF THE APPEAL IN TRACEY
- Documents filed in the Central Office, but not opened in open court
These documents cannot be accessed by a person who is not a party to the proceedings, unless they have a letter of consent from the parties to the proceedings. The decision on appeal in Tracey should not alter this position.
- Documents filed in the Central Office and opened in open court
We understand that pending the determination of the appeal in Tracey, the policy of the Central Office is not to allow non-party access to such documents, unless the person seeking access has a letter of consent from the parties to the proceedings. Absent the parties' consent, it would appear that the only way to access such Court documents is to make an application to the judge who dealt with the proceedings.
The position, therefore, appears to be that while we have a High Court authority to the effect that there is a right to access documents opened in open Court, there is currently no easy way to exercise this right. If the High Court decision in Tracey is affirmed on appeal, it appears to us that it is likely that some procedure will be put in place to ensure that non-parties to the proceedings can effectively exercise their right of access to documents opened in open Court.
COURT DOCUMENTS WHICH ARE FREELY ACCESSIBLE
Judgments of the Irish Courts are ordinarily published on the website of the Courts Service, save in respect of cases heard in private or cases subject to reporting restrictions. The judgments can be accessed free of charge. In respect of High Court cases only, a freely accessible database allows anyone to view the list of documents which have been filed in a particular case. However, this database does not provide access to the actual documents filed.
In respect of the Supreme Court (Ireland's highest court), it is possible to obtain a copy of the written submissions of counsel on payment of a small fee once the relevant appeal has commenced. Where the submissions contain information the publication of which is prohibited by law or Court order, the parties must provide the Court Registrar with a redacted copy of the submissions. However, the parties do not have an automatic entitlement to redact information which they simply do not want published to the world at large, e.g commercially sensitive or confidential information.
Pursuant to a recently published Practice Direction, when the Supreme Court has decided an application for leave to appeal, the appellant's Application for Leave and the Respondent's Notice will be published on the website of the Courts Service, together with the decision of the Supreme Court. As in the case of written submissions, if either document contains information the publication of which is prohibited by law or by Court order, the relevant party must provide the Court Registrar with a redacted version of the document.
The current position is therefore that it is quite difficult for non-parties to proceedings to access Court documents opened in proceedings before the Irish High Court. As matters stand, the only way to do this is to either obtain the consent of the parties to the proceedings or to bring an application to the relevant judge in charge of the proceedings. This position may change in respect of documents opened in open Court depending on the outcome of the appeal in the Tracey case. A further update will be prepared in this regard once this appeal has been determined.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.