UK: Stop Press: The Court File - an Open Book?

The Department for Constitutional Affairs ("DCA") has recently published advance notice of a change to the Civil Procedure Rules ("CPR") which could impact heavily on litigants, particularly in cases of media interest. From 2 October 2006, non-parties, such as journalists, will be entitled to copies of statements of case from the court file as a matter of course, without needing to apply to the court. It is also proposed that this rule change will have retrospective effect. Is this concession to the press a step too far in favour of open justice?

On payment of a fee and submission of a written request, non-parties are entitled to obtain from the court file copies of served claim forms, save where an application has been granted to restrict access, and any judgments or orders given or made in public. If a third party wishes to obtain a copy of any other document on the court file, he has to file a formal application for the court's permission.

The courts' approach to these applications can be seen in two recent cases, Chan U Seek v Alvis Vehicles Ltd and Guardian Newspapers Ltd (2004) and Dian AO v David Frankel & Mead (A Firm) & Anor (2004). In the first, the Guardian applied for copies of pleadings from a case which had settled several days into trial on the basis that it needed them to report the proceedings accurately. The application was allowed on the grounds that the newspaper had a legitimate interest in inspecting the documents and the pleadings had, in any event, entered the public domain once proceedings were heard in open court. Dian also made it clear that the court would be more willing to grant access to documents which had already been deployed in court. Therefore, as the rules stand, related parties with a legitimate interest in an action can usually inspect the court file, but the press will usually not be able to (unless one party volunteers copies, of course) in advance of trial.

As currently drafted, the changes to the CPR at Part 5.4C will allow non-parties access to any statement of case, including particulars of claim and defences, filed at court without the need to issue an application (although not other documents such as witness statements). Parties will only be able to prevent access if they, or another person named in the statements of case, have already made a successful application to restrict access to the court file.

Further, the DCA has confirmed that this new provision, as drafted, does not contain any restriction which will prevent it from having retrospective effect. It will thus apply equally to all statements of case filed at court before and after 2 October 2006. Parties would still be able to apply to restrict access to documents filed prior to that date, but practically this could be difficult.

The proposed amendments are proving controversial. Increasing numbers of cases are being fought out in the glare of publicity but, at present, that is largely up to the parties to the claim (or at least one of them), at least until a claim reaches trial. Now, however much parties to a court action would rather keep the detail of the case under wraps until a public hearing, in the absence of a successful preventative application, the media will be able to obtain any statement of case right from the outset.

The rule change may well push litigants away from court proceedings altogether and towards arbitration (where the process is generally confidential throughout) but, if not, it risks at least altering the way parties draft their statements of case. Parties in potentially high profile cases may be encouraged to be more circumspect in their pleadings, for example avoiding admissions which might be seized upon by the press. That would hardly be a positive development.

That the changes, as presently drafted, are to apply retrospectively is an additional cause of concern. The DCA has indicated that further court guidance may be issued in order to address this issue, but no additional legislation is expected. Consequently, the DCA recommends that concerned parties make an application to retain confidentiality in existing statements of case until such guidance is issued. The advent of the new rule may well lead to a flurry of such applications. This could well clog up the court list, with the result that a sharp nonparty could swoop quickly before the objecting litigant had been able to make his application. There could also be mileage in arguments of unfairness in light of the fact that pleadings were drafted in the context of the different, existing procedural framework.

Open justice has long since been a fundamental principle of English law, as affirmed by the House of Lords in Scott v Scott (1913). There is a presumption that trials will be held in public and that judgments should be publicly available, with the resulting presumption that there should be as few impediments as possible to the reporting of cases. That all makes good sense. But is the routine disclosure of parties' detailed cases from the moment court proceedings start really in litigants' interests? Will it promote the early settlement of cases or does it just add to the risks of turning litigation into an unnecessary media battle?

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