In Bermuda Press (Holdings) v Registrar of the Supreme Court1, then Chief Justice Ian Kawaley considered the public's right of access to court documents in a matter deemed to be in the public interest. The Court subsequently issued Practice Direction (PD) No. 23 of 2015. This was followed by Amended PD No. 23 of 2015, which provides guidance for those seeking access to court documents. The Practice Direction distinguishes between cases that are pending and those that are not, and between automatic access to certain narrowly confined documents and discretionary access to a potentially broader range of documents.
A case is pending as soon as it is commenced and remains pending until it is concluded. Automatic access to documents in pending cases is only available in relation to cases filed on or after 1 December 2015. Non-party access to documents on the court file is significantly reduced during the pendency of the case.
A matter is considered inactive if it is concluded or if there has been no activity in the case for three consecutive years, in which case non-party access to court documents will be wider.
Access to documents by a non-party to proceedings depends on the status of the proceedings, i.e. whether they are pending or inactive. There are three ways in which a non-party can obtain automatic access to court documents, upon payment of the applicable fee2:
- When a case is no longer pending because it has concluded, a non-party can apply to the Registry for copies of any un-sealed documents on the court file;
- When a case is pending, a non-party can apply to the Registry for copies of any originating process (e.g. the writ, petition or originating summons) or any orders made in the case;
- When a reference is made in the course of a public hearing or in a public judgment to any documents on the court file, non-parties have a common law right to apply for copies of the relevant documents.
Notwithstanding the above, there are various instances where access to documents will not be available on privacy grounds, such as:
- Any cases where, by order of the court, public access to documents has been restricted by an order sealing the file;
- In relation to divorce proceedings and other proceedings related to children;
- Applications in relation to arbitration proceedings;
- Cases relating to the administration of the estate of a deceased person;
- Winding-up proceedings;
- Any other category of cases which may be identified from time to time by way of Circular by the Registrar.
A non-party to proceedings can apply to the Registrar for permission to view and/or obtain copies of documents that are not automatically available. The Registrar will consult the parties in the case and exercise the Court's discretion. A decision by the Registrar can be appealed to the Supreme Court.
Footnotes
1. [2015] SC (Bda) 49 Civ
2. The current fees are: $10 (praecipe), $25 (search fee), 50 cents per photocopied page
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