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 proceedings.

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 rather inactive."

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.

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