We have previously written
a post about the Supreme Court's decision in Bermuda Press (Holdings) v Registrar of the Supreme
Court in which the Chief Justice considered the public's
right of access to court documents in a constitutional matter
deemed to be in the public interest. The Court then issued Practice
Direction ("PD") No. 23 of 2015
(discussed here) late last year which widened the scope
indicating that members of the public were then entitled in civil
cases to apply for copies of (1) the originating process and (2)
judgments and orders in civil and commercial matters.
Subsequently in the final quarter of this year, the Supreme
Court issued a draft PD to be issued on 7 November 2016 with
a consultation period from 3 October – 28 October 2016. The
draft PD indicates that it expands upon and provides further
guidance on PD No. 23 of 2015. It provides proposed guidance and
rules around how non-parties to proceedings may access the
The consultative draft proposes a distinction be drawn between
"pending" proceedings versus
"inactive" proceedings. Where the Registrar of
the Supreme Court considers a case to be inactive, the right of
access becomes the same as if the requester was a party to the
proceedings and thus is quite wide. In contrast, where the
Registrar considers a case to the pending, the access is restricted
to originating process (writs, summonsed, originating motions and
petitions) filed on or after 1 December 2015.
"Pending" is defined as "...active
or open in the sense of awaiting a final decision of final
judgment". Further reference is made to a definition
referred to in Bermuda Press (Holdings) Ltd. which was, "A
legal proceeding is 'pending' as soon as it is
commenced...and until it is concluded; i.e. so long as the court
having original cognizance of it can make an order on the matters
in issue, or to be dealt with, therein".
In contrast, "inactive" is: "to be
construed as the opposite of pending. In some cases where final
judgment has not been entered, a matter will be considered inactive
notwithstanding the absence of a filed notice of
discontinuance....In circumstances such as these, where there has
been no activity on the file for three consecutive years preceding
the request, the Registrar will not consider the matter pending but
A key point, which the Registrar makes plain in the draft PD,
is: "The distinction between a pending case and an
inactive case is thus an important discriminating factor for the
access to be granted to non-parties". This may not always
be a clear distinction to make.
The consultation period was extended to 30 November 2016 by
Circular 24 of 2016 to give further time for consideration. We will
watch closely for the release of the PD in the near term to see
what impact the consultative process has on the draft.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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There are a number of issues regarding this nascent Tribunal and its procedures on which the Decree is silent and which will need to be answered and clarified for litigators and practitioners in due course.
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