1. law, govt and politics

Public Access to Court Documents
Research prepared for the Legal Resources Centre, South Africa
January 2015
This is a DRAFT version of an OPBP research report. This report is still awaiting
approval in accordance with the OPBP Constitution’s requirements. This report must
not be reproduced or cited without permission of the OPBP Executive Committee.
1
CONTRIBUTORS
Faculty reviewer:
Sandra Fredman
Rhodes Professor of the Laws of the British
Commonwealth and the United States,
Pembroke College and Faculty of Law,
University of Oxford
Research co-ordinator:
Helen Taylor
MPhil Candidate, University of Oxford
Researchers:
Benjamin Ong
Callum Musto
BCL Candidate, University of Oxford
MPhil Candidate, University of Oxford
Ntokozo Qwabe
Ailsa Warnock
BCL Candidate, University of Oxford
MSt Candidate, University of Oxford
Aakriti Malhotra
Thomas Watret
BCL Candidate, University of Oxford
BCL Candidate, University of Oxford
Laura Hilly
Alice Schneider
DPhil Candidate, University of Oxford
DPhil Candidate, University of Oxford
Ivo Gruev
Arushi Garg
MJur Candidate, University of Oxford
MPhil Candidate, University of Oxford
Tamas Szigeti
Raag Yadava
DPhil Candidate, University of Oxford
BCL Candidate, University of Oxford
2
Ndjodi Ndeunyema
MSc Candidate in Criminology and Criminal
Justice, University of Oxford
In addition, the research co-ordinator would like to thank:
•
Professor Hugh Collins, Acting Dean of the Oxford Law Faculty, for his support of this
project;
•
The Members of the Oxford Pro Bono Publico Executive Committee, Professor Sandra
Fredman, Dr Liora Lazarus, Dr Jacob Rowbottom, and Dr Eirik Bjorge, as well as
the members of the Student Committee (Zachary Vermeer, Arushi Garg, Yulia Ioffe,
Victoria Miyandazi and Michelle Kang) for their support and assistance with the
project.
Indemnity
Oxford Pro Bono Publico (OPBP) is a programme run by the Law Faculty of the University of
Oxford, an exempt charity (and a public authority for the purpose of the Freedom of
Information Act). The programme does not itself provide legal advice, represent clients or
litigate in courts or tribunals. The University accepts no responsibility or liability for the work
which its members carry out in this context. The onus is on those in receipt of the programme’s
assistance or submissions to establish the accuracy and relevance of whatever they receive from
the programme; and they will indemnify the University against all losses, costs, claims, demands
and liabilities which may arise out of or in consequence of the work done by the University and
its members.
Intellectual property
This report has been prepared exclusively for the use of the Legal Resources Centre in South
Africa, in accordance with the terms of the Oxford Pro Bono Publico Programme. It may not be
published or used for any other purpose without the permission of OPBP, which retains all
copyright and moral rights in this report.
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TABLE OF CONTENTS
PART 1 – EXECUTIVE SUMMARY
5
I.
INTRODUCTION
5
II.
NATURE OF THE RESEARCH
6
III.
TABULAR SUMMARY OF RESULTS
7
IV.
SUMMARY CONCLUSIONS
9
PART 2 – COMPARATIVE REPORTS
13
I.
ENGLAND AND WALES
13
II.
IRELAND
28
III.
SCOTLAND
37
IV.
UNITED STATES
44
V.
NEW ZEALAND
50
VI.
INDIA
58
VII.
NAMIBIA
65
VIII.
KENYA
69
IX.
GERMANY
74
X.
EUROPEAN UNION LAW
78
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PART 1
EXECUTIVE SUMMARY
I. INTRODUCTION
This is a report prepared by Oxford Pro Bono Publico (OPBP) for the Legal Resources Centre,
South Africa (LRC), to assist in the preparation of a submission to the Supreme Court of Appeal
in respect of a case in which the LRC is seeking leave to intervene, namely City of Cape Town v
South African National Roads Agency Limited.1
The case arises from a review by the City of Cape Town of a decision by the South African
National Roads Agency Limited (SANRAL) to establish toll roads in the Western Cape. In an
interlocutory application, SANRAL sought to keep part of the administrative record sealed from
public view on the basis of commercial confidentiality. The High Court dismissed SANRAL’s
claimed grounds for confidentiality but established two new rules of South African law that will
severely limit access to and distribution of court documents.
First, the High Court held that Rule 62(7) of the Uniform Rules of Court prohibits the Registrar
from providing copies of court documents to any person who does not have a direct and
substantial interest in the case.
Second, it held that the ‘implied undertaking’ rule prohibits parties to an administrative review
(or any other person) from disclosing any portion of the administrative record provided in terms
of Rule 53 (or even information contained in the record) to any other person without the
consent of the party that provided the record.
Both of these rules operate until the case is called in open court.
The LRC’s goal in intervening before the Supreme Court of Appeal is to argue that the High
Court was wrong to adopt these two rules as part of South African law and to show their
negative impact on public access to and distribution of court documents.
1
Appeal against the judgment of the Western Cape High Court (Cape Town), Case no 6165/2012 (2014)
5
II. NATURE OF THE RESEARCH
To assist the LRC with its submission to the Supreme Court of Appeal in this case, OPBP has
undertaken comparative research on the regulation of public access to and distribution of court
documents.
Our research addresses three questions:
1. What is the role, if any, of the ‘implied undertaking’ rule in English law with regard to
application proceedings, and particularly administrative review?
2. To what extent do other countries permit members of the public or media to access
court documents in application proceedings (and particularly administrative reviews)
prior to the matter being called in open court?
3. To what extent do other countries permit parties to distribute court documents provided
by another party through compulsion, prior to the matter being called in open court? Is
the position different with regard to documents in administrative reviews?
Question 1 exclusively concerns English law and therefore lacks any comparative element. The
research undertaken in answer to this question aims to provide a comprehensive explanation and
analysis of the ‘implied undertaking’ rule as it currently exists in English law.
Questions 2 and 3 form the focus of our comparative research, with the legal position in ten
jurisdictions having been surveyed in answer to these questions. They consist of the following
nine domestic jurisdictions and one regional jurisdiction:
I.
England and Wales
II.
Ireland
III.
Scotland
IV.
United States
V.
New Zealand
VI.
India
VII.
Namibia
VIII.
Kenya
IX.
Germany
X.
European Union Law
6
The research on England and Wales is the only report to answer all three questions, although
Questions 1 and 3 are dealt with together due to the fact that the ‘implied undertaking’ rule
(Question 1) regulates the distribution of court documents (Question 3). All the other reports are
structured on the basis of Questions 2 and 3, answering each in turn before summarising the
findings in a brief conclusion.
The reports have attempted to address three aspects of each jurisdiction’s law in relation to the
research questions: (a) relevant legislation or court rules, (b) case law, and (where possible) (c)
actual practice. Some researchers chose to structure their answers according to these three types
of legal sources, while others preferred to integrate the different sources into their larger
argument.
III. TABULAR SUMMARY OF RESULTS
The following table is a summary of the findings from our research in respect of the two
comparative questions concerning access to and distribution of court documents.
JURISDICTION
England and Wales
Ireland
Scotland
QUESTION 2:
ACCESS TO COURT
DOCUMENTS
QUESTION 3:
DISTRIBUTION OF COURT
DOCUMENTS
The common-law principle of open
justice is the basis of the CPR’s
regulation of access to court documents.
As a general rule, documents are
accessible, but only with the consent of
the court. The court carries out a
proportionality exercise, weighing the
open justice principle against any risk of
harm which access to the documents
may cause to the legitimate interests of
others, such as confidentiality.
The ‘implied undertaking’ rule has been
relaxed since its incorporation into the
CPR:
1. It is now treated as more permissive
than an actual undertaking
2. The content as been eroded by case
law and academic criticism
Different rules apply for judicial reviews,
which are regulated by CPR Part 54A.
There is a duty of candour on public
authorities, and therefore a presumption
of full and public disclosure, without any
need for standard disclosure procedures.
Irish law prohibits the distribution of
court documents obtained through
discovery for purposes of unrelated
litigation, but there is no explicit mention
of distribution of documents for other
purposes, such as journalism.
There is little Irish law directly on point,
but the reasoning in case law concerning
public access to documents that have
already been opened in court may
arguably be extended to cover
documents which have been submitted
to the court and can lawfully be opened
in court in future.
Scots law, albeit underdeveloped in this
area, adopts a restrictive approach: there
is no basis for a party, other than a party
to the cause, to access court documents
prior to the matter being called in open
court. However, the practice of Scottish
courts in providing public access to court
documents can be characterised as
remarkably informal; typically, solicitors
7
The ‘implied undertaking’ rule was
adopted into Scots law in the case of
Iomega Corporation v Myrica (UK) Ltd, but
the rule has not been codified. However,
the practice of Scottish courts in
providing public access to court
documents can be characterised as
remarkably informal; typically, solicitors
in the case simply pass copies to
United States
New Zealand
India
Namibia
Kenya
in the case simply pass copies to
members of the media.
Public access to court documents in
federal civil proceedings is subject to
common
law
and
constitutional
protections that give rise to a strong
presumption in favour of public access,
although different standards are applied
in respect of each when balancing
competing interests for and against
access.
There is no right or automatic
presumption of public access to court
documents prior to the matter being
called into open court. Members of the
public may seek leave to be granted
access to such documents. The judge has
a wide discretion whether to grant leave,
but in making his decision he must
consider certain interests, including both
the principles of open justice and the
protection of confidentiality.
Court documents can be obtained
through the Right to Information Act
(RTI Act) as well as rules of procedure
governing the relevant court. The RTI
Act presents a much broader right of
access to information since no cause
needs to be demonstrated by the RTI
applicant and the information obtained
becomes public and available to the
world at large.
Namibian law allows for the public and
media to access court documents prior to
a matter having been heard in court. This
can be inferred from the constitutional
protections of free speech and academic
freedom, as well as the common law
principle of open justice. The only
restrictions exist in the form of
administrative practices enforced by the
office of the Registrar aimed at
preventing loss or damage of documents.
Pending a Right to Information bill being
passed in the Kenyan Parliament, there
are currently no specific provisions
regulating public access to court
documents. However, from the broad
constitutional, legislative and judicial
pronouncements available, the following
general principle can be extracted: court
documents are public documents
accessible to the public prior to a matter
being called in open court, and there is
no need to show an interest in the matter
or provide a reason in order to access
such documents. The applicant must
simply file a request for access to the
relevant court.
8
members of the media.
Parties to civil proceedings have a
presumptive First Amendment right to
disclose material obtained in discovery to
third parties, although this presumptive
right of disclosure is subject to the
court’s inherent discretion to issue a
protective order restraining disclosure of
pre-trial discovery materials if ‘good
cause’ is shown. Third parties, including
media organisations, may apply to
intervene against a protective order.
The law prevents disclosure to third
parties or for collateral purposes. The
Court of Appeal suggested in Wilson v
White that an application might be made
to court for disclosure on the grounds of
public interest, but the situation would
have to be ‘compelling’.
Under the Supreme Court Rules,
distribution can only be made to nonparties if a ‘good cause’ is shown.
Distribution of documents obtained
under the RTI Act becomes public
information and is available to the world
at large.
There is no reported case law on the
distribution of documents obtained
through compulsion.
The following general principle can be
extracted from the broad constitutional,
legislative and judicial pronouncements
available on the subject: documents
obtained by a party from another by
compulsion and held by that party are
private documents, and are distributable
prior to a matter being called in open
court only in the interest of enforcing a
violated or threatened right.
Germany
European Union Law
The right of access to court documents
(Recht auf Akteneinsicht) prior to the
matter being called in open court is
generally restricted to the parties and
their legal representation. Third parties
who are able to demonstrate a ‘legitimate
interest’ (rechtliches Interesse) may be
granted access to anonymised court
documents by the court without the
permission of the parties.
Although the principles of openness and
transparency are binding upon all EU
institutions (including the ECJ), and the
EU Charter of Fundamental Rights
grants a corresponding right of public
access to information, access to the ECJ
documents is subject to notable
restrictions. The jurisprudence of the
Court tends to give priority to the
protection of the Court’s ongoing
proceedings, to which a disclosure of the
Court’s documents is regularly seen as
obstructive. There must be an overriding
public interest in favour of disclosure.
We were not able to find legislation that
addresses the specific issue of
distribution, but given that court
documents contain sensitive information
and that access (especially third party
access) to those documents is highly
restricted and regulated, it appears that
any unauthorised distribution or
publication of those documents would
not be allowed.
We were unable to find law that
addressed this particular point, but the
restrictive approach regarding public
access to ECJ documents would suggest
that distribution of documents obtained
through compulsion is likely not
permissible. Instead, the third party
seeking the documents would have to file
a written request with the ECJ for access
to the documents in question.
IV. SUMMARY CONCLUSIONS
This section is a summary of our main findings in respect of each of the three questions and
seeks to identify broad trends across jurisdictions. We hope that our comparative research will
offer helpful material for throwing the particular features of the South African legal position into
sharper relief and so enable a better understanding of access to court documents in South Africa.
Question 1: What is the role, if any, of the ‘implied undertaking’ rule in English law with
regard to application proceedings, and particularly administrative review?
The ‘implied undertaking’ rule has recently been incorporated into the Civil Procedure Rules
(CPR). Thus, while the substance of the rule lives on, the foundation is the CPR rather than an
‘implied undertaking’ to the courts. The rule has therefore been relaxed in two ways. First, the
courts no longer treat the rule as severely as they would an actual undertaking. Second, the
content of the rule as it now stands in the CPR is more permissive than the old common-law
rule was. This is not to say, however, that the ‘implied undertaking’ rule has been abolished only
because of the CPR. It has been subject to academic criticism, been cut down by the UK
Government in response to a challenge based on the European Convention on Human Rights’
Article 10 right to freedom of expression, and has been somewhat tacitly eroded by the courts.
9
While the ‘implied undertaking’ rule still survives in some other jurisdictions, like Ireland and
Scotland, its historical prominence stands in contrast to its current status as a rule which is
waning in legitimacy and influence – from a comparative law perspective, certainly not an ideal
time to adopt it as a new principle of law. It also hardly need be said that comparative analysis
should not consist of snapshots of discrete legal positions frozen in time, but rather demonstrate
an awareness of how historical context has shaped a dynamic legal landscape over time.
Question 2: To what extent do other countries permit members of the public or media to
access court documents in application proceedings (and particularly administrative reviews)
prior to the matter being called in open court?
The erosion of the ‘implied undertaking’ rule noted above is representative of a broader trend
towards greater transparency in line with the principle of open justice, which is particularly
strong in common law jurisdictions. The regulation of access to court documents is usually more
lenient in jurisdictions with an entrenched right of access to information, and especially so in
those jurisdictions where the right has been given effect through detailed legislation even though
such legislation might not apply directly to court documents. The gradual decline of the ‘implied
undertaking’ rule and a rising incidence of right to information legislation reflect the recognition
that transparency is a prerequisite for the legitimate wielding of public power in contemporary
constitutional democracies. Importantly, openness as an element of democratic accountability
applies both in respect of public bodies, who might be party to litigation, as well as the court
itself.
From an overview of the jurisdictions surveyed in this report, we can characterise the
mainstream position on access to court documents as follows: any third party may file a request
with the court for permission to view the documents in question, and in exercising its discretion
to grant or refuse such an application, the court weighs up all the interests at stake. It is in the
exercise of this discretion and the balancing of competing interests that the various jurisdictions
diverge in their approaches. In England and Wales, for instance, the court carries out a
proportionality exercise, weighing the open justice principle against any risk of harm which
access may cause to the legitimate interests of others, such as confidentiality. The default
position, however, is that access should be allowed in light of the importance of open justice. In
New Zealand, on the other hand, there is no automatic presumption in favour of access and no
predetermined hierarchy of interests, with the result that the judge has broad discretion when
weighing the interests at stake and deciding whether to grant or refuse access. It is worth noting
that New Zealand is the only jurisdiction covered in this report which bucks the general trend
10
towards greater openness described above, as the legal position regarding access to court
documents has become more restrictive since the 2009 reforms. In spite of this, however, the
report on New Zealand points to case law authority which suggests that the public interest will
often outweigh competing confidentiality interests. At the very least, confidentiality is never an
absolute bar to access.
Apart from these general observations, several specific distinctions emerge from the comparative
reports as being particularly salient. Most obviously, there is a difference in treatment between
public bodies and private parties and a corresponding discrepancy in the regulation of access to
court documents in respect of administrative reviews vis à vis private proceedings (most obvious
in England and Wales). Given the recognition, mentioned above, of the importance of
transparency and openness for democratic accountability, there is an expectation that public
bodies will, without judicial prompting, be forthcoming with all relevant information in respect
of their decision-making processes. Even though there are often no specific rules governing
access to documents in administrative reviews, there is in most cases an expected duty of
candour as far as public bodies are concerned, which means that the courts will generally be
more inclined to grant access where it has been withheld by the public body. Finally, it is worth
drawing attention to the observation that actual practice, as far as could be ascertained for
purposes of this report, is generally more lenient than the formal legal position regulating access.
Question 3: To what extent do other countries permit parties to distribute court documents
provided by another party through compulsion, prior to the matter being called in open
court? Is the position different with regard to documents in administrative reviews?
In most jurisdictions covered in this report, the legal position regarding the distribution of court
documents provided through compulsion is far less clear than the question of access to
documents. The position in the United States is perhaps the most lucid, and arguably also the
most broadly formulated: parties have a presumptive First Amendment right to disclose material
obtained in discovery to third parties, although this presumptive right of disclosure is subject to
the court’s inherent discretion to issue a protective order restraining disclosure of pre-trial
discovery materials if ‘good cause’ is shown. Third parties, including media organisations, may
apply to intervene against a protective order. In jurisdictions that have adopted a stricter
approach, like Germany and the European Union, disclosure does not legitimise distribution.
Third parties who wish to receive the disclosed documents would have to apply for access to the
administrative record themselves.
11
The erosion of the ‘implied undertaking’ rule, as noted in answer to question 1 above, can be
partly attributed to the courts’ refinement of the rationale for the rule, which is chiefly to protect
the party who makes a full and frank disclosure from the disclosed documents being used by the
other party for ulterior purposes, such as unrelated litigation, or to protect privacy rights where
documents are confidential. This clarification and refinement of the rationale makes it clear that
the ‘implied undertaking’ rule does not impose a blanket ban on the distribution of disclosed
documents, but rather aims to prevent distribution for an ulterior use or distribution in breach of
confidentiality. This more careful identification of the types of interests at stake and recognition
of the various motives for distribution that may be present allow for the public interest to play a
more prominent role. If the distribution of disclosed documents is not motivated by an ulterior
purpose, such as the initiation of unrelated litigation, and there is no confidentiality interest at
stake, it is likely that distribution will be allowed, particularly if it is in the public interest or for
journalistic purposes.
Finally, it is worth mentioning that the actual practice in relation to the distribution of
documents obtained through compulsion appears to be markedly more lenient than formal law
would suggest, particularly with regard to distribution of documents to the media. Scotland
illustrates this point well, for in spite of its very restrictive legal regime regulating the distribution
of court documents, it follows a remarkably informal and lenient practice, with solicitors
generally passing on copies of the disclosed documents to members of the media.
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PART 2
COMPARATIVE REPORTS
I. ENGLAND AND WALES
INTRODUCTION
QUESTIONS 1 AND 3: THE ‘IMPLIED UNDERTAKING’ RULE AND ACCESS TO
COURT DOCUMENTS
What is the role, if any, of the ‘implied undertaking’ rule in English law with regard to
application proceedings, and particularly administrative reviews?
To what extent are the parties permitted to distribute court documents provided by another
party through compulsion, prior to the matter being called in open court? Is the position
different with regard to documents in administrative reviews?
The decline of the ‘implied undertaking’ theory
It is necessary to distinguish between the content of the ‘implied undertaking’ rule and the theory
that it is based on an implied undertaking. While the content has remained and been codified in
the Civil Procedure Rules (CPR), the theory that it is based on an implied undertaking is now
defunct.
Origins of the rule
Historically, it was held that parties who obtain documents by compulsion are bound by an
‘implied undertaking’ to the court not to use them for an ‘ulterior or alien purpose’, including not
only other legal actions, but even for non-legal purposes such as making ‘comments in the
newspapers’.2 However, the ‘implied undertaking’ theory has been criticised as being as a
‘redundant fiction’.3
The reason for this fiction – why it was an implied undertaking, rather than requiring an express
one – is that, if the court required an express undertaking not to use the documents for a particular
2
3
Riddick v Thames Board Mills [1977] QB 881 (CA) 896
AAS Zuckerman, Zuckerman on civil procedure: principles of practice (3rd edn, Sweet & Maxwell 2013), [15.172]
13
purpose (e.g. the purpose of reporting a party to the police4), then there would be too much
litigation over whether the undertaking had been broken. Thus, instead, there was a general
implied undertaking not to make ‘improper use’ of the documents; a party who violated it was
liable for contempt of court.
Criticisms of the rule
However, it appears that this fiction was taken too far. In Crest Homes v Marks, the court spoke of
the ‘integrity of the court’s own orders’ and ‘integrity of undertakings given to the court’, such
that only ‘very special circumstances’ would allow a party to be released from the undertaking.5
In other words, the criticism is essentially that the fictional ‘implied undertaking’ had been treated
as seriously as though it had been an actual, solemn undertaking to the court.
The criticism that this went too far6 is illustrated by Harman v Secretary of State for the Home
Department,7 where a solicitor was held guilty of contempt of court for breaching the implied
undertaking by showing the documents to a journalist, even after the documents had been read
out in court and were thus public knowledge. This case has been criticised for being
incompatible with the principles of freedom of expression and open justice.8 Indeed, the dissent in
this case suggested that it would be absurd that the public itself could make use of the
documents, but, by reason only of their implied undertaking, the solicitors could not.9
Modifications to the rule
The result in Harman itself (though not the whole of the implied undertaking theory) was later
reversed through changes to the RSC.10 After Harman was committed for contempt of court, she
applied to the European Commission of Human Rights on the grounds of the Article 10(1) right
to freedom to impart information. Although her application was ruled admissible,11 the matter
was settled with the Government, leading to the introduction of O 24 r 14A RSC:
Any undertaking whether express or implied not to use a document for any purposes other than
those of proceedings in which it is disclosed, shall cease to apply to such document after it has
been read to or by the court, or referred to, in open court unless the court for special reasons has
Alterskye v Scott [1948] 1 All ER 469 (Ch)
Crest Homes v Marks [1987] AC 829 (HL) 848, 859, 858
6 I Eagles, ‘Disclosure of Materials obtained on Discovery’ (1984) 47 MLR 284, 287-293
7 Harman v Secretary of State for the Home Department [1983] 1 AC 280 (HL)
8 I Eagles, ‘Disclosure of Materials obtained on Discovery’ (1984) 47 MLR 284, 284-285
9 Harman v Secretary of State for the Home Department [1983] 1 AC 280 (HL) 312
10 Mahon v Rahn (No 1) [1998] QB 424 (CA) 453-456
11 Harman v United Kingdom (App no 10038/82) (1985) 7 EHRR CD146
4
5
14
otherwise ordered on the application of a party or of the person to whom the document
belongs.12
It is notable that the courts not only applied O 24 r 14A as a rule of positive law, but also made
comments justifying the logic behind it. In Derby v Weldon (No 2), the court remarked that:
[t]he voluntary disclosure of documents in the course of interlocutory proceedings by a
party does not come within the rationale which is the basis of the implied undertaking
relating to documents disclosed on discovery. In relation to documents voluntarily
disclosed the Court has not invaded the privacy of the party. The party has, for his own
purposes in defending a case, decided himself to use the documents rather than maintain
his privacy. It is the party who has destroyed the privacy of the document, not the
Plaintiff or the Court. 13
Moreover, even when the implied undertaking still applied, the hard-line attitude by the courts
seen in Harman and Crest Homes was somewhat eroded by the recognition that, because the
‘implied undertaking’ was owed to the court (and not to the other party), the court ‘ha[d] the right
to control and can modify or release a party’ from the undertaking.14
Reform of the ‘implied undertaking rule’ in CPR 31.22
While the substance of the new CPR 31.22(1)(a) is similar to that of the ‘implied undertaking’
rule, the basis of the rule is now the CPR rather than the ‘implied undertaking’ theory.
The relevant sections of CPR 31.22 (which apply to administrative review15), provide that:
Extract from CPR 31.22, Subsequent use of disclosed documents and completed Electronic Documents
Questionnaires
(1) A party to whom a document has been disclosed may use the document only for the
purpose of the proceedings in which it is disclosed, except where –
(a) the document has been read to or by the court, or referred to, at a hearing which
has been held in public;
(b) the court gives permission; or
(c) the party who disclosed the document and the person to whom the document
belongs agree.
(2) The court may make an order restricting or prohibiting the use of a document which has
been disclosed, even where the document has been read to or by the court, or referred to,
at a hearing which has been held in public.
(3) An application for such an order may be made –
(a) by a party; or
(b) by any person to whom the document belongs.
Mahon v Rahn (No 1) [1998] QB 424 (CA) 454-455
Derby v Weldon (No 2) (1988) 132 SJ 1755; The Times, 20 October 1988. This case is difficult to find, but the
relevant passage is conveniently reproduced in Mahon v Rahn [1998] QB 424 (CA) 431-432.
14 Prudential Assurance v Fountain Page [1991] 1 WLR 756 (QB) 764-765
15 CPR 2.1
12
13
15
In England and Wales, it is now a ‘complete code in relation to the use of disclosed documents’,
including not only the documents themselves but also the information derived from them.16 The
‘implied undertaking’ theory therefore no longer exists at common law.
For our present purposes, the significant implications of the reform include the following:
•
The holding in Harman that it was contempt of court to make use of a document even if
it has been read out in open court is now reversed.
•
The documents may be used for any purpose as long as the court gives permission. For
example, in R (Taranissi) v Human Fertilisation & Embryology Authority,17 the BBC was
allowed to see the documents relating to Taranissi’s application for judicial review for the
sake of defending a libel action brought by Taranissi. Access was allowed as it was held to
be in the public interest.
•
If the parties agree that a certain document may be made public, there is no need to also
obtain the permission of the court. In other words, it is clear that the only purpose of the
rule is to protect the parties. Otherwise, there is no blanket rule that is justified only on
the grounds of the ‘integrity of undertakings given to the court’ (emphasis added).18
Therefore, while CPR 31.22 has been said to codify the common law on the ‘implied undertaking
as to the use of documents’,19 it has in fact cut down the content of the rule. Nonetheless, it is
useful to examine the older common law position to learn about the rationale.
The justifications for the rule in CPR 31.22(1)
Reasons for the rule: Riddick v Thames Board Mills
There are essentially two reasons for the implied undertaking rule (although they have been
phrased in different ways in various cases), which appear from Riddick v Thames Board Mills.20
In Riddick, an employee sued for wrongful arrest because of the manner in which he was fired. In
the course of these proceedings, he obtained through compulsion an internal memo from the
employer that criticised the employee. Later, the case was settled and he agreed to withdraw his
IG Index v Cloete [2014] EWCA Civ 1128, [2014] CP Rep 44, [24]
R (Taranissi) v Human Fertilisation & Embryology Authority [2009] EWHC 130 (Admin)
18 Crest Homes v Marks [1987] AC 829 (HL) 859
19 IG Index v Cloete [2014] CP Rep 44, [24]
20 Riddick v Thames Board Mills [1977] QB 881 (CA)
16
17
16
allegations about wrongful arrest. He then tried to use the memo as evidence to sue the employer
for defamation.
The court held that the employee could not use the memo for this purpose: a party may not use
documents obtained through compulsion for an ‘ulterior or alien purpose’, including both other
legal actions and non-legal purposes such as making ‘comments in the newspapers’.21 This was
because:
(1) Compulsion to produce documents is a prima facie wrong because it is the ‘invasion of a
private right to keep one’s documents to oneself’. It is allowed only because the public
interest in knowing the truth outweighs the public interest in protecting confidentiality.22
Therefore, the interference with this private right was not to go further than necessary.23
(This principle may now also be justified on the grounds of Article 8, ECHR).24
(2) The ‘implied undertaking’ rule was necessary to protect persons in the position of the
employer, who had made ‘full and frank disclosure’ and therefore reached a settlement.
Otherwise, parties may be discouraged from making disclosure.25 Indeed, one wonders
whether the parties would have reached the settlement if the employer had known that
the employee was going to turn around and try to sue the employer again through a
different route.
Criticisms of these reasons
Both grounds have been criticised for various reasons:
1. Both grounds purport to be reasons for restricting access to the document, whereas the
restrictions could be rendered nugatory if the document were later to be made public by
being read out in open court26 - which is what would have happened in Riddick if the
settlement had not been reached. Thus, in Taylor v Serious Fraud Office27, Lord Hoffmann
expressed doubt about reason 2.
2. As for reason 1, Zuckerman offers the additional criticism that the court would ‘bring
the law into disrepute’ by ‘prevent[ing] a judge from learning something relevant to the
Riddick v Thames Board Mills [1977] QB 881 (CA) 896
Riddick v Thames Board Mills [1977] QB 881 (CA) 895
23 Riddick v Thames Board Mills [1977] QB 881 (CA) 896
24 AAS Zuckerman, Zuckerman on civil procedure: principles of practice (3rd edn, Sweet & Maxwell 2013), [15.171]
25 Riddick v Thames Board Mills [1977] QB 881 (CA) 902, 912
26 P Prescott, ‘Improper Uses of Discovery’ (1978) 94 LQR 488, 489
27 Taylor v Serious Fraud Office [1999] 2 AC 177, 211
21
22
17
issues’28. Instead, the court should use its general jurisdiction to ‘control its own process’
rather than having a blanket prohibition on the use of documents obtained by
compulsion in other legal actions.29
3. There is case law that leans in favour of allowing use of the documents:
a. If the document has been referred to in a public hearing, then, although the court
has the power to restrict its use under CPR 31.22(2), it will now not do so unless
there are ‘very good reasons’ for doing so, such as adverse effects on third
parties30 or confidentiality.31 Moreover, this applies even if the document has not
been read in full, or at all, by the court, so long as the court has been directed to
pre-read them.32
b. If the document has not been referred to in a public hearing and one or more of
the parties objects, then the court may still allow the party to use it for other
purposes under CPR 31.22(1)(b). It is submitted that the grounds on which
permission for this will be granted are to be found in CPR 5.4C, ‘Supply of
documents to a non-party from court records’, which is covered in our
discussion of access to court documents below.
The particular case of judicial review: Does CPR 31.22 apply at all?
It might be argued that CPR 31.22 has no bearing on judicial review proceedings at all because
the applicant’s giving copies of the documents to potential interveners is part of the ‘purpose of
the proceedings’ (to use the phrase from CPR 31.22(1)). According to this view, CPR 31.22 does
not affect intervention in judicial review because it only prevents a party from using the
document in litigation in some totally unrelated action,33 whereas interveners in judicial review
proceedings can be said to be using the documents for the very ‘purpose of the proceedings’.
AAS Zuckerman, Zuckerman on civil procedure: principles of practice (3rd edn, Sweet & Maxwell 2013), [15.195]
AAS Zuckerman, Zuckerman on civil procedure: principles of practice (3rd edn, Sweet & Maxwell 2013), [15.196]
30 This is borne out by the fact that CPR 31.22(3)(b) appears to aim to protect ‘any person to whom the document
belongs’.
31 Lilly Icos v Pfizer [2002] EWCA Civ 2, [2002] 1 WLR 2253
32 Lilly Icos v Pfizer [2002] EWCA Civ 2, [2002] 1 WLR 2253, [8]; AAS Zuckerman, Zuckerman on civil procedure:
principles of practice (3rd edn, Sweet & Maxwell 2013), [3.128]-[3.129]
33 ‘Related’ actions have been said by an academic commentator to be ‘proceedings that, while free-standing and
independent of the original litigation, are closely connected with it or flow from it’, e.g. related criminal proceedings;
actions based on the fruits of search orders; and ‘contempt proceedings ancillary to the original litigation’: see S
Gibbons, Subsequent use of documents obtained through disclosure in civil proceedings (2001) 20 CJQ 303, fn 17, and the cases
cited therein.
28
29
18
This argument aside, however, there is a much stronger reason why the distribution of
documents in judicial review proceedings is treated differently to the distribution of documents
in other application proceedings as regulated by CPR 31.22, namely the specific provisions in the
CPR that regulate judicial review cases and the complementary duty of candour on public
authorities.
Part 54A of the CPR and the duty of candour
Judicial review is governed by its own specific set of provisions in the CPR, namely Part 54A.
Rule 54.16, entitled ‘evidence’, explicitly states that ‘disclosure is not required unless the court
orders otherwise’, the rationale being that judicial review is not usually based on factual disputes
and – most importantly – that public authorities owe what is known as a ‘duty of candour’34 to
lay ‘all the cards face upwards on the table’, since ‘the vast majority of the cards will start in the
authority’s hands’.35 In other words, the premise upon which Rule 54.16 proceeds is that public
bodies will be forthcoming with information. The duty of candour extends to both ‘pre-existing
documentary evidence’ as well as ‘information that is within the knowledge of the defendant: the
defendant must provide an account of all the facts relevant to the issue that the court must
decide, including all of its reasoning, even where such reasoning is adverse to the defendant’s
case.’36
This duty of candour is the very reason why the discovery process is only available in judicial
review cases sparingly:37 public authorities are expected to volunteer information as a matter of
course. The court in British Union for the Abolition of Vivisection (BUAV) v Secretary of State for the
Home Department38 confirmed that although judicial review cases are not normally subject to the
standard disclosure of ordinary civil proceedings, the court nevertheless does have power under
Rule 54.16 to order pre-action disclosure in judicial review proceedings but that this power
should be used very sparingly. It stated as follows:
Judicial review proceedings have their own Part in the CPR, their own pre-action protocol,
disclosure practice, and the duty of candour. The scope in judicial review for a large number of
irrelevant or marginally relevant documents to be produced is evident, and can impose a great
burden on parties and courts, without really advancing any case that the action or omission was
unlawful. Part 54 contains no express and general duty of disclosure. It is expected, and the
expectation is almost always met, that the public authority defendant will explain in an open and
SA De Smith et al, De Smith’s Judicial Review (7th edn, Sweet & Maxwell 2013), [16-027]
R v Lancashire CC, ex p Huddleston [1986] 2 All ER 941 (CA) 945
36 J Auburn, J Moffett and A Sharland, Judicial Review: Principles and Procedures (OUP 2013) at 27.41.
37 SA De Smith et al, De Smith’s Judicial Review (7th edn, Sweet & Maxwell 2013), [16-069]-[16-070]
38 British Union for the Abolition of Vivisection (BUAV) v Secretary of State for the Home Department [2014] EWHC 43
(Admin)
34
35
19
full manner how it reached the decision impugned, exhibiting the relevant supporting documents,
without need for any general or specific order. Where there is an issue about relevance or some
other inhibition on disclosure which another party seeks, an order for specific disclosure can be
made. The greater flexibility, after Tweed, does not advance the case for pre-action disclosure. Its
comments about the general inapplicability of civil litigation disclosure in judicial review are
compelling here.39
The purpose of the duty is not only to ‘meet the challenge’ of the applicant;40 it is a duty owed to
the court41 to ‘cooperate’, and is linked to the principle of ‘partnership’ between the courts and
public bodies for the sake of the ‘maintenance of the highest standards of public
administration’.42 The importance of this duty is seen in the fact that the Treasury Solicitor itself
has acknowledged the duty of candour and issued guidance to government departments on how
to comply with it.43
The implication of Rule 54.16 and the duty of candour is that in most judicial reviews, there will
be no pre-trial disclosure and accordingly, the ‘implied undertaking’ rule as contained in CPR
31.22 will generally not be relevant – what the court in BUAV v Secretary of State for the Home
Department described as ‘the general inapplicability of civil litigation disclosure in judicial review’.44
However, it is submitted that CPR 31.22 will indeed apply where the court uses its discretion
under Rule 54.16 to order disclosure. This situation is most likely to arise where there are
confidentiality interests at stake, but the court’s confidentiality analysis finds that the documents
should nevertheless be disclosed. On the issue of confidentiality and the duty of candour, the
court in BUAV v Secretary of State for the Home Department stated as follows:
[The] question [was] whether or not the public interest in the fair conduct of the litigation
overrode that confidentiality. This requires an assessment of its confidentiality and if so, then a
judgment as to that balance.
That balancing exercise would require consideration of the importance of the confidential
material, and the damage to the public and private interests which its disclosure would entail, and
the countervailing advantage to the fair conduct of the litigation.45
British Union for the Abolition of Vivisection (BUAV) v Secretary of State for the Home Department [2014] EWHC 43
(Admin) at [55]
40 R v Lancashire CC, ex p Huddleston [1986] 2 All ER 941 (CA) 946
41 Belize Alliance of Conservation NGOs v Department of the Environment [2004] UKPC 6, [2004] Env LR 38, [86]
42 R v Lancashire CC, ex p Huddleston [1986] 2 All ER 941 (CA) 945
43 Treasury Solicitor, ‘Guidance on Discharging the Duty of Candour and Disclosure in Judicial Review Proceedings’
(2010)
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/285368/Tsol_discharging_1_.
pdf>
44 British Union for the Abolition of Vivisection (BUAV) v Secretary of State for the Home Department [2014] EWHC 43
(Admin) at [55]
45 British Union for the Abolition of Vivisection (BUAV) v Secretary of State for the Home Department [2014] EWHC 43
(Admin) at [50]-[51]
39
20
In conclusion, then, CPR 31.22 would only apply to judicial review cases where the court
recognises that certain material is confidential but nevertheless orders disclosure due to the
greater public interest in a fair trial. The documents disclosed would therefore be regulated in the
same way as documents disclosed in ordinary civil proceedings under standard disclosure
procedures.
QUESTION 2: ACCESS TO COURT DOCUMENTS
To what extent are members of the public or media permitted to access court documents in
application proceedings (and particularly administrative reviews) prior to the matter being
called in open court?
The Civil Procedure Rules
The starting point is CPR 5.4C, which is excerpted below insofar as it applies to claims filed on
or after 2 October 2006:
Extracts from CPR 5.4C, Supply of documents to a non-party from court records
(1) The general rule is that a person who is not a party to proceedings may obtain from the court
records a copy of –
(a) a statement of case, but not any documents filed with or attached to the statement of
case, or intended by the party whose statement it is to be served with it;
(b) a judgment or order given or made in public (whether made at a hearing or without a
hearing), subject to paragraph (1B).
(1A) [Exception for statements of case filed before 2 October 2006]
(1B) [Certain exceptions relating to mediation]
(2) A non-party may, if the court gives permission, obtain from the records of the court a copy of
any other document filed by a party, or communication between the court and a party or another
person.
In short, under CPR 5.4C(2), once the defendant has acknowledged the claim, any non-party
may obtain from the court copies of documents (such as the respondent’s administrative record),
but only with the court’s permission. Moreover, the court has the discretion to add conditions
under CPR 3.1(3) or its inherent jurisdiction.46
Is access to the entire file allowed?
It appears unclear whether one can simply request access to the entire file. Under Practice
Direction 5A.4.3, one must identify specifically the ‘document or class of document’ which is
46
Supreme Court Practice (‘White Book’) (Sweet & Maxwell 2014), [5.4C.8]
21
sought to be accessed. On the other hand, one may argue whether all the documents in the file
can constitute a ‘class of document’.
The need to specify which particular documents are requested has been justified in a 1992 case
on the grounds that:
the filing of documents in court, as required by the court rules for the purposes of litigation, shall
not of itself render generally available what otherwise would not be. Many documents filed in
court never see the light of day in open court. For example, when proceedings are disposed of by
agreement before trial… Likewise with affidavits produced for interlocutory applications which
are disposed of in chambers.47
However, with respect, this justification is contradictory to the generally permissive approach
seen in later cases. In a 2014 case, the court said that documents may be inspected not only when
they have been read in open court, but even when no trial has been held at all, in order to allow
the public to know ‘why a case [was] settled [before trial]’.48
A better justification is that seen in a small remark in R (Guardian News and Media) v Westminster
Magistrates’ Court that suggested that the request must not ‘place any great burden on the court’.49
With respect, however, this appears to be a mere side remark rather than laying down a legal test.
Furthermore, the fact that documents are now stored electronically suggests that it will rarely, if
ever, be a burden on the court to facilitate access.
The common-law principle of open justice
It is crucial to note that the relevance to South Africa lies in the fact that the Criminal Procedure
Rules (and therefore, one may infer, the CPR) are not constitutive of the power to allow access
to documents. The Rules only set out the process for applying for access; access is granted
pursuant to the courts’ inherent jurisdiction to give effect to the common law constitutional
principle of open justice.50
What is the common-law principle?
The principle of open justice is that ‘the courts must conduct their business publicly unless this
would result in injustice’.51 There are a number of reasons for this, but the most important is
Dobson v Hastings [1992] Ch 394 (Ch) 402, cited in Pfizer Health v Schwarz Pharma [2010] EWHC 3236 (Pat), [2011]
FSR 14, [20(ii)]
48 NAB v Serco [2014] EWHC 1225 (QB) [39]
49 R (Guardian News and Media) v Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618, [87]
50 R (Guardian News and Media) v Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618, [69], [73], [75]
51 R (Guardian News and Media) v Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618, [2]
47
22
arguably the fact that openness is central to democratic accountability, as described in the
Mohamed case:
In litigation, particularly litigation between the executive and any of its manifestations and the
citizen, the principle of open justice represents an element of democratic accountability, and the
vigorous manifestation of the principle of freedom of expression. Ultimately it supports the rule
of law itself. Where the court is satisfied that the executive has misconducted itself, or acted so as
to facilitate misconduct by others, all these strands, democratic accountability, freedom of
expression, and the rule of law are closely engaged. 52
The starting point
The starting point is that the reason why access to documents is allowed is to allow the public to
scrutinise the trial. Therefore, the court carries out a ‘proportionality exercise’, weighing the open
justice principle against ‘any risk of harm which access to the documents may cause to the
legitimate interests of others’.53 An example of such harm is a violation of confidentiality.54
However, it has also been suggested that access will not be granted if there would otherwise be a
‘great burden on the court’.55
Somewhat confusingly, although the Court of Appeal has said that there is an ‘assumption that
all documents in the case are necessary and relevant’ for the purpose of ‘scrutiny’,56 the High
Court has said that there is no presumption in favour of permitting the release of documents.57
That having been said, the High Court’s approach was based purely on the text of CPR 5.4C(2),
in which the ‘burden of proof is reversed’ when the documents requested are documents other
than the statement of claim, the statement of claim being covered by CPR 5.45C(1).
By contrast, it is clear that, in the case of the statement of case, the default position is to lean in
favour of disclosure. An order under CPR 5.4C(4) that restricts access to the statement of case is
a ‘derogatio[n] from the principle of open justice’ and therefore ‘must be ordered only when it is
necessary and proportionate to do so, with a view to protecting the rights which claimants (and
others) are entitled to have protected by such means’.58 In fact, ‘the reasons why [the requestor]
wants [the document] are of little or no importance unless it can be said that the document is
sought for some improper purpose’.59 It is submitted that this is the starting point that should be
R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2010] EWCA Civ 158, [2011] QB 218,
[38]-[39]
53 R (Guardian News and Media) v Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618, [85]
54 Lilly Icos v Pfizer [2002] EWCA Civ 2, [2002] 1 WLR 2253, [25](v)
55 R (Guardian News and Media) v Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618, [87]
56 Lilly Icos v Pfizer [2002] EWCA Civ 2, [2002] 1 WLR 2253, [25](ii)
57 Various Claimants v News Group Newspapers Ltd [2012] EWHC 397 (Ch), [2012] 1 WLR 2545, [65]
58 G v Wikimedia Foundation [2009] EWHC 3148 (QB), [2010] EMLR 14, [17]
59 Various Claimants v News Group Newspapers Ltd [2012] EWHC 397 (Ch), [2012] 1 WLR 2545, [63]
52
23
adopted on the basis of the common law principle of open justice without reference to the text of
CPR 5.4C. In other words, though the court should have discretion to refuse access to
documents, the default position should be that access is allowed.
The proportionality analysis
The court balances concerns of confidentiality against ‘the role that the document has played or
will play in the trial, and thus its relevance to the process of scrutiny’.60 Moreover, it is not
necessarily true that a document will be available just because it was referred to during the trial.
The factors considered by the court include:
1. Whether documents have been read by the court as part of a decision-making process
(even if the documents have been read privately by the judge in chambers rather than
read out in open court).61 If so, the requestor only needs a ‘legitimate interest’.62 If not,
then request will only be allowed if there are ‘strong grounds for thinking that it is
necessary in the interests of justice’.63
2. The ‘reasons why the documents are sought, and the use to which they will be put’.
There have been various views on how exactly this applies:
a. In the High Court case of Various Claimants (2012), the court asked whether the
documents were ‘truly required (in this case in their unredacted form) in order
properly to understand and report the court proceedings in which they were
referred to and relied upon’.64
b. In the Court of Appeal case of Guardian News and Media (2012), on the other
hand, the court was satisfied simply that the requestor, a newspaper, had a
‘proper journalistic purpose’.65
c. Indeed, in Guardian News and Media, the court declined to make ‘what would really
be an editorial judgment about the adequacy of the material already available to
the [news]paper for its journalistic purpose’.66
Lilly Icos v Pfizer [2002] EWCA Civ 2, [2002] 1 WLR 2253, [25(ii)]
In our present case, it is submitted that ‘the decision-making process’ includes the decisions to grant leave to apply
for judicial review and leave to admit the NGOs as interveners.
62 Dian AO v Davis Frankel & Mead [2004] EWHC 2662 (Comm), [2005] 1 WLR 2951, [56]
63 Dian AO v Davis Frankel & Mead [2004] EWHC 2662 (Comm), [2005] 1 WLR 2951, [57]
64 Various Claimants v News Group Newspapers Ltd [2012] EWHC 397 (Ch), [2012] 1 WLR 2545, [66]
65 R (Guardian News and Media) v Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618, [85]
60
61
24
d. Monitoring whether justice has been done is a ‘powerful reason’ to allow access
to documents. However, the court ‘should lean in favour of disclosure’ in the
case of other types of ‘legitimate interest’,67 including:
i. Being involved in potential subsequent litigation68
ii. Being commercially active in a technical field which involves a patent
which is the subject of litigation.69
It is submitted that, if it has been held decisively that there are no confidentiality concerns, then
there ought to be no need for a proportionality analysis at all: the law should begin with the view
that all documents are publicly available, and then note that there are no reasons why this view
should be departed from.
Are documents available before the hearing has begun?
It is submitted that documents are available even before the hearing has begun. This is because
the requestor may desire access to the document for reasons totally unrelated to the hearing. For
example, in Dian AO v Davis Frankel & Mead, the question was whether the applicant, a nonparty who would be involved subsequently in litigation, had a ‘legitimate interest’ not in the
decision-making process but only in the documents themselves70 for the purpose of future litigation, yet
the court granted access to some of the documents requested.71
It is true that the court suggested that, in the case of documents ‘that were not read by the court
as part of the decision-making process’, such as documents that have been ‘filed pursuant to the
requirements of the rules but only for the purposes of administration’, disclosure will only be
allowed if there are ‘strong grounds for thinking that it is necessary in the interests of justice to
do so’.72 However, it is submitted that this should not be taken at face value for two reasons:
1. Intervention in judicial review proceedings, particularly when leave to intervene has
already been granted, is a ‘legitimate interest’. The court should thus take the permissive
approach which it did toward the requestor in Dian AO itself.
R (Guardian News and Media) v Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618, [82]
Dian AO v Davis Frankel & Mead [2004] EWHC 2662 (Comm), [2005] 1 WLR 2951, [56]
68 Dian AO v Davis Frankel & Mead [2004] EWHC 2662 (Comm), [2005] 1 WLR 2951
69 Pfizer Health v Schwarz Pharma [2010] EWHC 3236 (Pat), [2011] FSR 14
70 Dian AO v Davis Frankel & Mead [2004] EWHC 2662 (Comm), [2005] 1 WLR 2951, [56]
71 Incidentally, this is the sort of use of documents that was disapproved of in Riddick.
72 Dian AO v Davis Frankel & Mead [2004] EWHC 2662 (Comm), [2005] 1 WLR 2951, [57]
66
67
25
2. As noted above, in the later case of NAB v Serco, the court said that documents may be
inspected not only when they have been read in open court, but even when no trial has
been held at all, in order to allow the public to know ‘why a case [was] settled [before
trial]’.73 In other words, the court in Dian AO was restricting access to irrelevant
documents rather than creating a blanket restriction on access before the hearing.
3. In the particular case of judicial review, the relevant ‘decision-making process’ is not only
the substantive hearing, but also preliminary matters such as the decision to grant leave
to apply for judicial review and leave for NGOs to intervene.
4. Whereas Dian AO concerned a private dispute, it was later held in the public law context
that ‘the principle of open justice represents an element of democratic accountability…
Where the court is satisfied that the executive has misconducted itself, or acted so as to
facilitate misconduct by others, all these strands, democratic accountability, freedom of
expression, and the rule of law are closely engaged.’74 This is not to say that the courts
should encroach on other means that facilitate scrutiny of the executive itself, such as
Freedom of Information legislation. Rather, it means that openness is especially
important for the sake of scrutiny of the courts when the courts are scrutinising the executive.
CONCLUSION
As for Questions 1 and 3, the ‘implied undertaking’ rule has now been incorporated into the
CPR. Thus, while the substance of the rule lives on, the foundation is the CPR rather than an
‘implied undertaking’ to the courts. The rule has therefore been relaxed in two ways. First the
courts no longer treat the rule as severely as they would an actual undertaking. Second, the
content of the rule as it now stands in the CPR is more permissive than the old common-law
rule was. This is not to say, however, that the ‘implied undertaking’ rule has been abolished only
because of the CPR. It has been subject to academic criticism, been cut down by the
Government in response to a challenge based on the ECHR right to freedom of expression, and
has been somewhat eroded tacitly by the courts. Furthermore, standard disclosure does not
generally apply to judicial review cases, which are instead governed by Part 54A of the CPR, in
terms of which there is an expected duty of candour.
NAB v Serco [2014] EWHC 1225 (QB) [39]
R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2010] EWCA Civ 158, [2011] QB 218,
[38]-[39]
73
74
26
As for Question 2, the CPR have been held to be based on the common law principle of open
justice. The analysis undertaken here sought to divorce arguments made in courts based on the
text of the CPR with arguments based on this common law principle.
27
II. IRELAND
QUESTION 2: ACCESS TO COURT DOCUMENTS
To what extent are members of the public or media permitted to access court documents in
application proceedings (and particularly administrative reviews) prior to the matter being
called in open court?
Older Law
The starting point is s 65(3) of the Court Officers Act 1926: ‘All proofs and all other documents
and papers lodged in or handed in to any court in relation to or in the course of the hearing of
any suit or matter shall be held by or at the order and disposal of the judge or the senior of the
judges by or before whom such suit or matter is heard.’75 This has been interpreted in Minister for
Justice Equality and Law Reform v Information Commissioner to refer to a ‘general prohibition on the
disposal of documents but from which the Judge can dispense’.76 With reference to the same
statute, in Mr X and the Department of Justice, Equality and Law Reform, the Information
Commissioner held that there was a ‘long-standing practice which amounted to a prohibition’ of
disclosure of affidavits to the public.77 Various commentators confirm that, before the 2013 and
2014 cases discussed below, there was no general right of public access to court documents.78
Recent Case Law
In Minister for Justice Equality and Law Reform v Information Commissioner, the High Court recognised
that the ‘prohibition’ on disclosure of documents is ‘general’ in nature, and stems from the fact
that ‘the courts are entitled to regulate the conduct of court business’.79 It follows that it was
therefore, in principle, open to the superior courts to change its interpretation of s 65(3).
No 27 of 1926
Minister for Justice Equality and Law Reform v Information Commissioner [2001] 3 IR 43 (HC) 50
77 Case 99021 Mr X and the Department of Justice, Equality and Law Reform (Information Commissioner, 17 May 2001)
78Seth Barrett Tillman, ‘Time to open up courts and let justice be seen’ (Independent.ie, 22 August 2012)
<http://www.independent.ie/opinion/analysis/seth-barrett-tillman-time-to-open-up-courts-and-let-justice-be-seen26889857.html>
Rossa McMahon, ‘We can’t all access the courts. We should at least have access to court documents.’ (A Clatter of
the Law, 23 August 2012) <http://aclatterofthelaw.com/2012/08/23/we-cant-all-access-the-courts-we-should-atleast-have-access-to-court-documents/>
Paul MacMahon, ‘Public Access to Irish Court Documents’ (Ex Tempore, 23 August 2012)
<http://www.extempore.ie/2012/08/23/public-access-to-irish-court-documents/>
79 Minister for Justice Equality and Law Reform v Information Commissioner [2001] 3 IR 43 (HC) 50
75
76
28
Disapproval of the ‘implied undertaking’ theory: Breslin v McKenna
In Breslin v McKenna, the Supreme Court held that permission was required for books of evidence
from a criminal trial to be released for the purposes of a civil action arising from the same
incident. It refused to grant permission in cases where the evidence would be ‘use[d]… for
wholly different proceedings or indeed for any uncontemplated public or semi-public purpose.
These restrictions are necessary in the interest of justice having regard to the ultimate finality of
the verdicts of guilt or otherwise in the due process’.80 Crucially, however, there were two
breakthroughs:
1. The court doubted the ‘implied undertaking’ theory and ‘prefer[red] to base [its ruling]
on the courts’ overall responsibility to ensure the due administration of justice’.81
2. The court rejected the suggestion that granting access to the books of evidence was
‘prohibited as a matter of law’ on the basis of the Rules of the Superior Courts. It held
that ‘Rules of court are not part of the substantive law. They are designed to regulate in
the interests of justice how litigation should be conducted and they include wide powers
of amendment and dispensation.’82
General right to access documents: Allied Irish Bank v Tracey (No 2)
Breslin paved the way for Allied Irish Bank v Tracey (No 2),83 a groundbreaking High Court case. In
the course of litigation between AIB and Tracey, Tracey alleged that AIB had negligently allowed
Agar (Tracey’s business partner) to misappropriate money. Agar, his reputation having been
called into question, therefore wished to see the affidavits filed by Tracey in this case. Hogan J
held that Agar was allowed to do so, for the following reasons.
1. Breslin was distinguished on the ground that it involved special policy reasons relating to
the nature of criminal proceedings, whereas this case was purely a civil action.84 As a
result, there was no bar to the public having access to the affidavits.
2. Agar could access the affidavits as of right, without requiring court permission. This is
because the affidavits had been ‘ventilated in civil proceedings in open court and…
Breslin v McKenna [2008] IESC 43, [2009] 1 IR 298, [36]
Breslin v McKenna [2008] IESC 43, [2009] 1 IR 298, [36]
82 Breslin v McKenna [2008] IESC 43, [2009] 1 IR 298, [39]
83 Allied Irish Bank v Tracey (No 2) [2013] IEHC 242, [2013] 3 JIC 2106
84 Allied Irish Bank v Tracey (No 2) [2013] IEHC 242, [2013] 3 JIC 2106, [12]
80
81
29
effectively openly read into the record of the court’. Therefore, ‘any cloak of
confidentiality or protection from non-disclosure vanished at [that] point’.85
3. There were no concerns such as application of in camera rules or reporting restrictions.86
4. Even if permission were required, permission would be granted because it was required
to give effect to Agar’s constitutional right to his ‘good name’.87
5.
‘The open administration of justice is… a vital safeguard in any free and democratic
society. It ensures that the judicial branch is subjected to scrutiny and examination and
helps to promote confidence in the fair and even handed administration of justice.’88
Therefore, not only Agar, but also ‘the public’ in general, was entitled to access the
affidavit.
While Agar only requested the affidavit after the hearing, it is submitted that the Court’s
reasoning about the affidavit already having been ‘effectively opened in open court’ implies that
the affidavit would also be available during the hearing, or between a hearing at first instance and
an appeal hearing.
Further development of the law: Kelly v Byrne
In Kelly v Byrne, the same judge said that his judgment in Tracey was limited ‘only to documents
which have already been freely opened in open court and in respect of which there are no reporting
or other restrictions’ (emphasis in original).89 However, from the discussion of the issue of Agar’s
constitutional right to his ‘good name’, it might be deduced that, when deciding whether or not
to grant permission to access a document, the court will apply some sort of proportionality
analysis. Thus, in the context of public law, it is submitted that the court could make use of ideas
such as an implied constitutional right to good governance or a public interest in transparency.
In Kelly v Byrne, the High Court distanced itself further from the outcome in Breslin in two ways:
1. The Director of Public Prosecutions was allowed to access a statement made by the
defendant in civil proceedings in order to use it for a criminal prosecution. This is closer to the
facts in Breslin itself (statement in criminal case for civil case) than in Tracey (statement in
Allied Irish Bank v Tracey (No 2) [2013] IEHC 242, [2013] 3 JIC 2106, [21]
Allied Irish Bank v Tracey (No 2) [2013] IEHC 242, [2013] 3 JIC 2106, [23]
87 Allied Irish Bank v Tracey (No 2) [2013] IEHC 242, [2013] 3 JIC 2106, [14]
88 Allied Irish Bank v Tracey (No 2) [2013] IEHC 242, [2013] 3 JIC 2106, [22]
89 Kelly v Byrne [2013] IEHC 450, [2013] 10 JIC 0701, [11]
85
86
30
civil case for civil case). It shows that the reasoning in Breslin has, in Hogan J’s view,
fallen even further out of favour.
2. The court ignored the test in Breslin of whether documents will be used for ‘wholly
different proceedings’, instead distinguishing Breslin on the grounds that, there, it had not
been proven that the documents had been opened in open court.90
The court appears to have wavered slightly on the issue of whether anybody may access court
documents: ‘It is perhaps unnecessary for the purposes of this application to decide whether a
party seeking such access has to establish that he or she has a good reason to seek such
documentation.’91 However, it is respectfully submitted that this statement must be seen in the
light of the defendant’s submission that the Director of Public Prosecutions had ‘no locus standi
to interfere’ (emphasis added).92 This suggests that there may be scope for an exception to the
principle of open access to court documents if the documentation is plainly going to be used for
frivolous or vexatious litigation.
At any rate, the court held that the Director of Public Prosecutions would have a ‘good reason’
for accessing the statement: the Director needed it to fulfil her constitutional role of prosecuting
crimes ‘in the name of the People’.93 Again, this point may support the argument that
constitutional rights or principles of good governance lean in favour of making documents
available to the public.
While Tracey and Kelly only apply to court documents which have already been opened in open
court, the reasoning appears to be based on the fact that, by then, there can be no claim that the
documents should be sealed due to concerns of confidentiality. It is therefore submitted that, if,
before substantive proceedings in open court, it has been explicitly held by the court that no such
concerns of confidentiality apply, there is no reason for the documents not to be released before
the substantive hearing. This is for the sake of open justice and the public interest in judicial
review proceedings.
Future Legislative Developments?
Kelly v Byrne [2013] IEHC 450, [2013] 10 JIC 0701, [12]
Kelly v Byrne [2013] IEHC 450, [2013] 10 JIC 0701, [13]
92 Kelly v Byrne [2013] IEHC 450, [2013] 10 JIC 0701, [13]
93 Kelly v Byrne [2013] IEHC 450, [2013] 10 JIC 0701, [13]
90
91
31
It was reported in the Independent, an Irish newspaper, that statutory reform of the law on ‘access
to court files’ may be underway in the Legal Services Regulation Bill.94 At the time of writing, no
references to the issue could be found in the online reports of the debates of the Oireachtas (the
Irish legislature), and no further details of the proposed statutory reforms (if any) could be
found.
QUESTION 3: DISTRIBUTION OF COURT DOCUMENTS
To what extent are the parties permitted to distribute court documents provided by another
party through compulsion, prior to the matter being called in open court? Is the position
different with regard to documents in administrative reviews?
General framework: Ambiorix v Minister for the Environment (No 1)
The answer to Question 2 applies to documents which have, at some point, been opened in
open court. As for documents which were obtained through a discovery order and have not yet
been opened in court, the starting point is the Supreme Court case of Ambiorix Ltd v Minister for
the Environment (No 1). Property development companies sought discovery of the Minister’s
documents in order to challenge his decision to categorise several sites as ‘Designated Areas’.
The documents were confidential because they contained commercial information which was
given to the Minister ‘in the belief that [it] would be treated in confidence’.95
The Court made three points:
1. The courts must balance the public interest in the confidentiality of the executive’s
documents and the public interest involved in the production of evidence ‘for the purposes
of the litigation before the court’ (emphasis added).96
2. ‘As a matter of general principle, of course, a party obtaining the production of
documents by discovery in an action is prohibited by law from making any use of any
description of such documents or the information contained in them otherwise than for
the purpose of the action. To go outside that prohibition is to commit contempt of
court.’97
Dearbhail McDonald, ‘Public will get better access to documents of courts’ (Independent.ie, 22 August 2012)
<http://www.independent.ie/irish-news/public-will-get-better-access-to-documents-of-courts-26889538.html>
95 Ambiorix Ltd v Minister for the Environment (No 1) [1992] 1 IR 277 (SC) 285
96 Ambiorix Ltd v Minister for the Environment (No 1) [1992] 1 IR 277 (SC) 283, 285
97 Ambiorix Ltd v Minister for the Environment (No 1) [1992] 1 IR 277 (SC) 286
94
32
3. ‘Furthermore, the Court has an inherent jurisdiction… to take such steps as are necessary
to regulate the production of documents so as to prohibit any infringement of this
restriction.’98
The issue of confidentiality
The result of the balancing exercise in Ambiorix was that, in an exercise of its inherent
jurisdiction under point 3, the court ordered that the documents would be either ‘edited’ and the
confidential information redacted, or access would only be granted to the property developers’
lawyers, who would have to give the Court an undertaking that they would not reveal the
contents to their clients. 99
A similar balancing exercise was performed in Cooper Flynn v RTE. The respondent had allegedly
advised certain investors to join in a tax evasion scheme. The court ordered that access to the
files of these investors (including their names, addresses, and other details) would be restricted to
the applicants’ lawyers. This was to ‘mitigat[e] the loss of confidentiality which must necessarily
occur’.100
The key point here is that the court’s key concern in making orders in an exercise of its inherent
jurisdiction under point 3 above appears to be confidentiality. If confidentiality is not a concern,
then it is submitted that the Tracey line of cases is more instructive.
For what purposes may the documents be distributed?
But is point 2 an obstacle? Does the phrase ‘otherwise than for the purpose of the action’ in point
2 mean:
a. ‘for other legal actions’? or
b.
‘in this legal action, but for purposes other than the parties’ making submissions in
court’?
One commentator suggests that the answer is (b), citing Ambiorix for the proposition that:
documents obtained as a result of discovery and inspection can only be used for the purpose of
the action. No matter how interesting they may be from other points of view, or even from the
point of view of similar stories of exactly the same kind, they cannot be used for any such
Ambiorix Ltd v Minister for the Environment (No 1) [1992] 1 IR 277 (SC) 286
Ambiorix Ltd v Minister for the Environment (No 1) [1992] 1 IR 277 (SC) 286
100 Cooper Flynn v Radio Telefis Eireann [2000] 5 JIC 1902 (HC)
98
99
33
purpose. Even if they are read out in court, they cannot be the subject of further separate
journalistic stories.101
This may have been based on the words ‘for the purposes of the litigation’ in point 1 above. It is
respectfully submitted that this is inaccurate. It hints at the ‘implied undertaking’ theory which
was doubted in Breslin, is not supported by Ambiorix itself (which mentions point 2 in quite a
cursory manner), and is inconsistent with Tracey and Kelly.
From the approach taken in subsequent cases such Roussel v Farchepro, it appears that the answer
is (a). Therefore, the ideas in Ambiorix should not, in our present case, prevent the distribution of
documents obtained through legal compulsion when the documents are sought to be used in the
same case.
The balancing exercise in practice: Roussel v Farchepro
In Roussel, a party to patent litigation in Ireland sought to use documents obtained by compulsion
from the other party for the purposes of parallel litigation in Switzerland and Spain. Most
importantly for our purposes, the High Court held that the ‘prohibition’ on ‘making any use of
any description of such documents or the information contained in them otherwise than for the
purpose of the action’102 under point 2 (hereafter ‘the prohibition’) is not absolute. It may be
lifted by the court if the following conditions (based on judgment of the UK House of Lords
Crest Homes v Marks103) applied:
1. There are ‘special circumstances’.104
2. Doing so would not ‘occasion injustice to the person giving discovery’. 105
3. Other factors weigh in favour of the court’s ‘exercise of discretion’ so as to lift the
prohibition: the court must look at ‘all the circumstances, including, if necessary, the
circumstances of the original disclosure, the nature and the strength of the evidence, the
type of wrongdoing which is alleged to be involved and the interests of both the
applicant and the party providing discovery as well as any public interest which may be
involved’.106
Y Murphy and D McGuinness, Journalists and the Law (3rd edn, Round Hall 2011) 126
Ambiorix Ltd v Minister for the Environment (No 1) [1992] 1 IR 277 (SC) 286
103 [1987] AC 829 (HL) 860
104 Roussel v Farchepro [1999] 3 IR 567 (HC) 574
105 Roussel v Farchepro [1999] 3 IR 567 (HC) 574
106 Roussel v Farchepro [1999] 3 IR 567 (HC) 574
101
102
34
Why must a ‘balancing exercise’ be done at all?
It is submitted that Roussel ought to be doubted in the light of Tracey and Kelly for three reasons:
1. The need for a balancing exercise was justified on the grounds that there was an ‘implied
undertaking’, but the ‘implied undertaking’ theory has since then been disapproved of by
the Supreme Court in Breslin.
2. If the documents have been opened unconditionally in open court, then, following Tracey
and Kelly, they ought to be available to the public as of right; it should make no difference
that the documents were obtained by legal compulsion. If there were concerns such as
confidentiality, then the documents would not have been opened unconditionally in open
court.
3. If there are no concerns of confidentiality, such that the documents can be opened
unconditionally in open court, then there is no reason to wait until they actually are
before releasing them to the public.
The factors to be balanced
For the reasons in the previous section, it is questionable why the Court held that it can only lift
the prohibition on ‘special circumstances’, given that it stressed that its power to do so is
discretionary and also listed some ‘circumstances’ which it did not describe as ‘special’ which
could also weigh in favour of lifting the prohibition.
The answer is that it appears that the Court took the ‘special circumstances’ test directly from
Crest Homes v Marks, which justifies the need for ‘special circumstances’ on the ground of
preserving ‘integrity of the implied undertaking given to the court on behalf of a party obtaining
an order for discovery’. However, with respect, this does not gel with the rejection of the
‘implied undertaking’ theory in Breslin.
As for the other circumstances going to the exercise of court discretion, it would appear from
the inclusion of issues such as the ‘nature and strength of the evidence’ and the ‘type of
wrongdoing which is alleged to be involved’ that, even if confidentiality is not an issue, the court
will consider other issues such as convenience.
With respect, for the reasons in the previous section, it is unclear why this is so. Nonetheless, it
is submitted that in public law cases, factors such as the ‘type of wrongdoing which as alleged to
35
be involved’ and the ‘public interest which [is] involved’ ought to weigh in favour of the
documents being freely distributable – that is, if the documents are held not to be freely available
as of right in the first place.
CONCLUSION
There is little Irish case law that is directly on point. As for Question 2, the case law centres on
public access to court documents after they have been opened in court. It essentially makes the
point that justice is to be done in public, and that court documents which have been opened in
open court are, in a sense, already in the public domain. However, it is submitted that the
reasoning in these cases may be extended to cover court documents which have been submitted
to the court and can lawfully be opened in court in future. These cases are very recent and
illustrate the beginning of change in the law in favour of greater transparency. It remains to be
seen how these changes will play out and whether they will be led by the courts or by the
legislature.
As for Question 3, the case law appears to impose restrictions on the use of court documents
which were obtained through discovery orders in other litigation on broadly the same grounds as in
England and Wales; there is no explicit mention on the use of court documents for other
purposes, such as journalism. In particular, there appears to be no case law on third party
intervention in judicial review proceedings; in fact, third party intervention appears not to be
mentioned in the Superior Court Rules at all. That having been said, the case law may be used to
argue that the standard set of justifications for not allowing parties to distribute these
documents, such as the ‘implied undertaking’ rule, are, if not outdated, irrelevant and undesirable
in the context of judicial review.
36
III. SCOTLAND
QUESTION 2: ACCESS TO COURT DOCUMENTS
To what extent are members of the public or media permitted to access court documents in
application proceedings (and particularly administrative reviews) prior to the matter being
called in open court?
Legislation
The relevant rules of the Rules of the Court of Session are Rule 4.11 (Documents not to be
borrowed) and 4.12 (Borrowing and returning documents).107
Rule 4.11(1) provides that a writ shall remain in the Office of Court and shall not be borrowed,
but may be inspected by ‘any person having an interest’.108 This is glossed by Greens Annotated
Rules of the Court of Session as follows:
A party to the cause has an interest. Whether other persons have a sufficient interest is in the
discretion of the Principal Clerk. The phrase might include a person who could be called in the
cause. It is unlikely it would include a person merely seeking information for the purposes of
another cause, for whom there are procedures for recovery of documents in Chap. 35.109
A ‘writ’ is defined in Rule 1.3(1) as the summons (including a condescendence and pleas-in-law
annexed to it), petition, note, application, appeal, minute, defences, answers, counterclaim or
issue.
Rule 4.12 provides the procedure for the borrowing and return of other court documents. Rule
4.12(1) states the general rule for ‘a party borrowing a document which may be borrowed’.110
Documents which may not be borrowed, constituting various steps of process, are listed in rule
4.11(3). Neither the Rules of the Court of Session nor Greens Annotated Rules of the Court of
Session define ‘a party’, but it should be taken to mean ‘a party to the cause’. This is apparent
from the restrictive approach taken in the case law, discussed below.
Additionally, court documents are the subject of an absolute exemption under section 37 of the
Freedom of Information (Scotland) Act 2002.
Act of Sederunt (Rules of the Court of Session 1994) 1994, SI 1994/1443
Rule 4.11(2) provides exceptions where a party is borrowing his principal writ for the purposes of service,
intimation, or authentication of an amendment.
109 At Rule 4.11(2)
110 Rule 4.12(1)
107
108
37
Finally, it may be noted that in 2012, in the wake of BBC, Petitioners111 and Petition by the British
Broadcasting Corporation for Access to Crown Productions in the case of HMA v Hainey,112 discussed below,
a public petition was raised in the Scottish Parliament calling for new legislation to enable
members of the public to obtain copies of documents submitted in court cases.113 Following
consultation, this petition was not taken forward.
Case law
Traditionally, the court has prevented the publication of court documents prior to their being
referred to in open court. This is controlled principally by the rules on contempt of court and
defamation. At the outset, it should be noted that the position is no different with regards to
administrative reviews.
In this regard, the Scottish courts have assessed the legality of publication with reference to two
points in time: in addition to the calling of the case in open court, the courts make reference to
the closing of the record. The ‘closed record’ contains the (adjusted) initial pleadings of the
parties, setting out the whole of the summons and defences, and the pleas in law of the pursuer
and defender. Below the legal position is outlined with reference to the period (i) before the
record is closed; (ii) after the record is closed, prior to the case calling in open court; and (iii)
once the case has called in open court.
(i) Before the record is closed
The statutory form of contempt found in the Contempt of Court Act 1981 applies in Scotland
from the time when the arrangements for the hearing are made,114 which will generally coincide
with the closing of the record. However, publication from the open record could still be
contempt at common law if the court considers, as the leading texts suggest it likely would, that
it was intended to prejudice the administration of justice.115
[2012] HCJ 2
[2012] HCJDV 10
113 Petition PE1455 on Public Access to Court Records http://www.scottish.parliament.uk/GettingInvolved/Petitions/openjustice
114 Contempt of Court Act 1981, s2(3); Sch 1, para 12
115 D Eady and ATH Smith (eds), Arlidge, Eady & Smith on Contempt (4th edn, Sweet & Maxwell 2013), 16-217; R
McInnes, Scots Law for Journalists (8th edn, Thomson Reuters (Legal) Ltd 2010), para 9.41; Lord Eassie, HL
MacQueen (eds), Gloag and Henderson: The Law of Scotland (12th edn, W Green 2012), para 29.11
111
112
38
In Young v Armour,116 a newspaper published extracts from the open record. Lord Blackburn
accepted an apology and explanation on behalf of the newspaper editor, but stated that, had the
explanation not been satisfactory, a severe fine for contempt would have been appropriate.
It is clear that privilege does not extend to statements before the record is closed.117 However,
points of law may be debated in open court prior to the closing of the record, in which case a
report of proceedings, including information from the open record that is referred to in court,
which the court is being asked to make a decision on, may be published.118
(ii) Once the record is closed, prior to the case being called in open court
In Richardson v Wilson,119 the Court of Session rejected the argument that a passage from a
summons could be published once the record was closed and the case was on the calling list, but
prior to the case being heard in open court. The court said that would not be a report of judicial
proceedings, but of the contents of a writ which were at the time unknown even to the court.
On appeal to the First Division, the Lord President (Inglis) said the duty of the clerk in charge of
the process was at that stage plainly not to part with the summons or give access to it, except to
the parties to the case. Publication by a party to the action would leave them open to possible
liability in defamation and contempt.120
In MacLeod v Lewis Justices of the Peace,121 immediately after the closing of the record, the agent of
the pursuer handed to a newspaper reporter a reprint of the record containing statements which,
if false, were defamatory. The court held that the publication did not, in this case, constitute a
contempt, but the publication of the pleadings did not attract privilege. Lord Young and Lord
Trayner expressed the view that the publication of the pleadings, whether closed or unclosed,
was improper conduct.122 The Lord Justice-Clerk merely stated that ‘it may be the practice to
hand complete records to the newspapers, but it is not one to be looked on with favour’.123
(iii) Once the case is called in open court
1921 1 SLT 211
Macleod v Lewis Justices of the Peace (1892) 20 R 218; Lord Eassie, HL MacQueen (eds), Gloag and Henderson: The Law
of Scotland (12th edn, W Green 2012), para 29.11
118 Cunningham v Scotsman Publications 1987 SC 107; R McInnes, Scots Law for Journalists (8th edn, Thomson Reuters
(Legal) Ltd 2010), para 9.42
119 (1879) 7 R 237. Richardson v Wilson was recently cited with approval by Lord Reed in the UK Supreme Court in
the Scottish case of BBC, Re [2014] UKSC 25.
120 ibid, p 242; see also D Eady and ATH Smith (eds), Arlidge, Eady & Smith on Contempt (4th edn, Sweet & Maxwell
2013), 16-221
121 (1892) 20 R 218
122 ibid, p 221
123 ibid, p 220
116
117
39
In Cunningham v Scotsman Publications,124 a significantly more modern case than those cited in (i)
and (ii), Lord Clyde established the parameters of privilege once a case has called in open court,
stating:
The test in my view is not what is actually read out – although all that is read out is published –
but what is in the presentation of the case intended to be published and so put in the same
position as if it had been read out. If it is referred to and founded upon before the court with a
view to advancing the submission which is being made, it is to be taken as published.125
Lord Clyde was careful to note that not all parts of a document would necessarily be safely used,
should a case arise ‘where a document contained matter quite distinct and separable from the
point in issue before the court and neither relevant to it nor necessary for its determination and
where such matter might not necessarily be published where other parts were founded upon.’126
Lord Clyde also observed, obiter, that documents other than pleadings, such as productions, may
stand in a different position.127 The newspapers defending the action agreed that productions
would not be published unless they were led in evidence.128 His Lordship further noted that the
position of pleadings in a closed record was not at issue, ‘in relation to which some conflict
between principle and practice may be thought to exist.’129 His Lordship did not decide the
question, on which counsel had made submissions, as to the meaning of ‘party interested’ in Rule
31 of the Rules of Court 1965 – the modern equivalent to which is Rule 4.11 of the Rules of the
Court of Session – but stated ‘my attention was not drawn to any provision which prohibits the
inspection of a document which has been founded upon in open court.’130
Finally, issues of access to Crown productions arose in the recent cases of BBC, Petitioners131 and
Petition by the British Broadcasting Corporation for Access to Crown Productions in the case of HMA v
Hainey.132 The BBC sought access to photographs produced as part of the Crown case during a
high-profile murder trial, which the Crown had refused. In the first case, Lord Carloway held
that the petitioners could request access to the photographs from the trial judge, being the
person best placed to assess the request and, where necessary to balance the rights involved.
Alternatively, they could seek judicial review of the decision taken by or under the authority of
1987 SC 107
ibid, p 120
126 ibid, p 121-122
127 ibid, p 123
128 ibid
129 ibid
130 ibid
131 [2012] HCJ 2
132 [2012] HCJDV 10
124
125
40
the Lord Advocate. In the second case, after balancing the competing interests involved, the trial
judge held that photographs featuring the victim should be released.
Actual Practice
Rosalind McInnes, author of Scots Law for Journalists,133 is the Principal Solicitor for the BBC in
Scotland. Scots Law for Journalists was recently referred to with approval by the High Court of
Justiciary in BBC, Petitioners.134 In Scots Law for Journalists, McInnes remarks that, given the legal
position, it is ‘not surprising... that reporters sometimes find solicitors reluctant to hand over to
them closed records in cases which have not reached the stage of a hearing in open court.’135
However, ‘when an action of damages opens before a judge or jury in the Court of Session it is
usual for solicitors to willingly let the press have a copy of the closed record without any
reservations as to which passages may be published. They do so although at a proof or jury trial,
the closed record may never be read out in open court.’136
Although once the case is in open court, ‘the reporter can normally expect to obtain a closed
record from the solicitor for one party or the other’, if not, ‘the next step will be to approach the
clerk of court. If the clerk is unable or unwilling to provide a copy, the reporter’s next line of
approach is to the Principal Clerk of Session. In the unlikely event of the Principal Clerk’s refusal
to help, the reporter will have to ask to see the Lord President.’137
McInnes provides an anecdotal account of where that occurred:
not only did both parties to a large property dispute refuse to hand over a record, and the clerk
feel unwilling to supply one to the press, but one of the parties offered a journalist a sum of
money for not publishing anything about the case. As it was impossible to report the case
without access to the pleadings, Lord President Cooper was approached and instructed the
Principal Clerk that the court staff should provide the press with a closed record. Otherwise, he
said, the parties would be enforcing a closed doors hearing at their own hand.138
This illustrates the informal nature of the arrangements in Scotland for providing the press with
access to court documents.
R McInnes, Scots Law for Journalists (8th edn, Thomson Reuters (Legal) Ltd 2010)
[2012] HCJ 2, para [7]
135 R McInnes, Scots Law for Journalists (8th edn, Thomson Reuters (Legal) Ltd 2010), para 9.49
136 ibid, para 9.50
137 ibid, para 9.57
138 ibid, para 9.58
133
134
41
SPICe, the Scottish Parliament Information Centre, prepared a research briefing139 for the
Scottish Parliament in the course of the recent public petition on the issue of public access to
court documents, mentioned above.140 It states that ‘while the public can attend court hearings
and form an impression of a case as it unfolds, little of the written information in a court is
available to the public.’141 Further, ‘other material presented to the courts, such as witness
statements, expert reports, documentary and physical evidence, is not generally available to the
public.’142 In relation to journalists, it is stated that ‘usually... access to official court documents is
available on request where they have been referred to in court proceedings. The position of
evidence, such as witness statements or expert reports, is less clear. Certainly, these will not be
available where they have not been referred to in court proceedings’, and ‘of course, journalists
may get information from the parties to a court case as well as from court staff.’143 It proceeds to
note that, in this regard, journalists are constrained by the law on defamation and contempt of
court.
QUESTION 3: DISTRIBUTION OF COURT DOCUMENTS
To what extent are the parties permitted to distribute court documents provided by another
party through compulsion, prior to the matter being called in open court? Is the position
different with regard to documents in administrative reviews?
Question 2 outlined the statutory position whereby, in essence, only parties to the cause may
access court documents. This is so even after the matter has been called in open court. In
addition, court documents are the subject of an absolute exemption under section 37 of the
Freedom of Information (Scotland) Act 2002, meaning that the Act cannot be used to gain
access to court documents.
There is no statutory rule specific to parties to the cause distributing court documents provided
by another party through compulsion. However, it should be noted that Scotland adopted the
Abigail Bremner, SPICe Research Briefing (25 October 2012) http://www.scottish.parliament.uk/ResearchBriefingsAndFactsheets/Petitions%20briefings%20S4/PB12-1455.pdf
accessed 21 January 2015
140 Petition PE1455 on Public Access to Court Records (lodged 16 October 2012)http://www.scottish.parliament.uk/GettingInvolved/Petitions/openjustice accessed 21 January 2015
141 SPICe Research Briefing (n 33), p 1
142 ibid
143 ibid, p 2
139
42
implied undertaking rule in the case of Iomega Corporation v Myrica (UK) Ltd.144 The rule was
articulated in that case by the Lord President (Rodger) as follows:
A party who, as a result of commission and diligence, obtains possession of documents or other
items is subject to an implied obligation or undertaking to the court not to use them nor to allow
them to be used for any purpose other than the conduct of the actual or prospective proceedings
in respect of which they have been recovered.145
It is within the court’s power, where it is satisfied that it is in the interests of justice, to authorise
the use of such documents in other proceedings and to attach conditions to the use of those
documents.146
CONCLUSION
This issue is relatively underdeveloped in Scots law. The Rules of the Court of Session147 provide
limited guidance. The position in statute can be quite simply stated: there is no basis for a party,
other than a party to the cause, to access court documents prior to the matter being called in
open court.
The position as regards access to court documents being provided by parties to the cause to
members of the public or media is principally controlled by the law of contempt and defamation.
Scots law adopts a restrictive approach.
As regards the distribution of court documents provided by another party through compulsion,
Scotland adopted the implied undertaking rule in the case of Iomega Corporation v Myrica (UK)
Ltd.148 The rule has not been codified.
In general, the practice of Scottish courts in providing public access to court documents can be
characterised as remarkably informal; typically, solicitors in the case simply pass copies to
members of the media.
1998 SC 636 (IH)
ibid, p 640-641
146 ibid, p 640
147 Act of Sederunt (Rules of the Court of Session 1994) 1994, SI 1994/1443
148 1998 SC 636 (IH)
144
145
43
IV. UNITED STATES
QUESTION 2: ACCESS TO COURT DOCUMENTS
To what extent are members of the public or media permitted to access court documents in
application proceedings (and particularly administrative reviews) prior to the matter being
called in open court?
Access to federal records outside civil proceedings
In addition to (and in furtherance of) the Fourteenth Amendment right of due process and the
First Amendment right of access to judicial proceedings, access to federal agency records is also
regulated by the Federal Administrative Procedures Act (APA), and the Freedom of Information
Act (FOIA). US courts are not federal ‘agencies’ pursuant to §551 APA and material that is
admitted as part of the court record is not subject to information requests under the FOIA.149
However, administrative review cases frequently consider FOIA issues and the federal agency’s
compliance with 5 US Code §552.150 It is outside the scope of the present report to discuss the
operation of the FOIA in depth.
Discovery in administrative law proceedings
The final decisions of federal agencies are judicially reviewable pursuant to inter alia 5 US Code
§§701-706. The general standard of judicial review is whether an agency decision is ‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with the law’.151 In exercising
judicial review, courts are generally limited to reviewing an agency’s decision on the basis of the
administrative record extant at the time of final decision.152 There is a general presumption that
the administrative record is complete. Therefore, generally pretrial discovery is conditional upon
successful motion. Discovery will only be permitted in the event that the administrative record is
shown to be incomplete – that is not to contain information on which the federal agency directly
or indirectly based its decision.153 The discussion below regarding general civil procedure and
particularly pretrial discovery must be read in light of this.
Brown & Williamson Tobacco Company v Federal Trade Commission, 710 F.2d 1165 (6th Cir. 1983) at [75-6]
See the Supreme Court’s analysis in DOJ v Reporters Comm. for Free Press, 489 US 749 (1989)
151 5 US Code §706 (2)(A)
152 KLM Strich v. United States of America et al, No. 1:2009cv01913 – Doc 186 (D. Colo. 2011)
153 See, for example, Kane County, Utah v Kempthorne, 495 F Supp. 2d 1143 (D. Utah 2007) 1149
149
150
44
Public access to court documents in civil proceedings
There is a strong presumption in favour of a right of public access to court documents in civil
proceedings, originating both in the common law and implied in the First Amendment to the US
Constitution.154 The rationale for the existence of the right of access was outlined by the District
Court in Columbus Discovery:
[T]here is a common law as well as a constitutional right to have court records made public.
Publicity of such records, of course, is necessary […] so that the public can judge the
product of the courts in a given case. It is hardly possible to come to a reasonable
conclusion on that score without knowing the facts of the case.155
Common law right of access
Parties to civil proceedings wishing to limit access to records may seek to file material under seal.
The onus of proof rests with the party seeking to file under seal.156 For a court document to be
sealed, preventing public access, a party seeking to restrict access must show there exist
‘compelling reasons’ to displace the common law presumption of access.157
The common law right of access ‘is not absolute’: [e]very court has supervisory power over its
own records and files, and access has been denied where court files might have become a vehicle
for improper purposes.’158 Whether the presumptive right applies, and whether it ought to be
restricted or displaced is a matter of judicial discretion, which is exercised on a case-by-case
basis.159 In exercising discretion, a judge must apply a three-stage test and consider:
(i)
whether the material in question is a ‘judicial record’ to which presumption applies;160
(ii)
given the nature of the document and role in proceedings, what weight should be
given to the presumption of access?;
(iii)
in light of the weight given to the presumption, whether competing interests in
favour of sealing displace the presumption of access?
In Kamakana, the Court of Appeals elaborated the Nixon v Warner standard for assessing whether
‘compelling reasons’ exist to displace the common law presumption of access:
Nixon v Warner Communications, Inc. 435 US 589 (1978) 598
Columbus-America Discovery Group v Atlantic Mutual Insurance Company, 203 F 3d 291 (4th Cir. 2000) at [29]
156 See, for example, United States v. Amodeo, 71 F.3d 1044 (2d Cir.1995) 1053; Lytle v. JPMorgan Chase, 810 F. Supp. 2d
616 (SD New York 2011) 621; DiRussa v. Dean Witter Reynolds Inc., 121 F.3d 818 (2d Cir.1997) 826
157 Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172 (9th Cir. 2006) 1178-1179
158 Nixon v Warner, 598
159 ibid
160 Documents considered outside the category of ‘judicial record’ include grand jury transcripts and pretrial
warrants in criminal proceedings: Kamakana at [23]
154
155
45
In general, ‘compelling reasons’ sufficient to outweigh the public's interest in disclosure and
justify sealing court records exist when such court files might have become a vehicle for
improper purposes, such as the use of records to gratify private spite, promote public
scandal, circulate libelous statements, or release trade secrets. The mere fact that the
production of records may lead to a litigant's embarrassment, incrimination, or exposure to
further litigation will not, without more, compel the court to seal its records.161
Assessing whether the right of access applies must be conducted on a document-by-document
basis. In US v Corbitt, it was held that:
the public’s right to inspect judicial records may not be evaded by a wholesale sealing of
court papers. Instead, the district court must be sensitive to the rights of the public in
determining whether any particular document, or class of documents, is appropriately filed
under seal.162
The public, including the news media, has a right to challenge a party’s application to have
certain court records sealed. The common law right to access court documents gives legal
standing to intervene in proceedings, overriding standing requirements in federal procedure rules
(see further, Question 3 below).163
Although the common law presumption of access may be displaced by any statutory rules
concerning the release and dissemination of agency records, in principle, the common law and
constitutional rights of access to court documents apply equally in proceedings involving judicial
review of federal agency’s administrative decisions.164 In such proceedings, the First Amendment
and common law rights of access oblige the reviewing court to ‘state findings or conclusions
which justify nondisclosure to the public’ of any documents filed with the court.165 In Brown &
Williamson, it was also held that, although governing access to federal agency records outside
litigation, the FOIA does not apply in addressing issues of access to court documents.166
Although significant overlap between the common law and constitutional rights of access exists,
the two are not co-extensive. The extent of judges’ discretion in displacing the constitutional
right of access is more restricted than the common law right. According to Rodrick, the
constitutional right of access applies to a narrower range of material than the common law right,
but requires a more onerous standard in order to be displaced. 167
Kamakana at [24]
US v Corbitt 879 F.2d 224 (7th Cir.1989) 228
163 Beckman Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470 (9th Cir. 1992) 472-73; Nixon v. Warner, at 612
164 Brown & Williamson Tobacco Company v Federal Trade Commission 710 F.2d 1165 (6th Cir. 1983) at [72]; see also: In re
Knoxville News-Sentinel Co., Inc 723 F.2d 470 (1983)
165 Brown & Williamson at [72-73]
166 Brown & Williamson at [75-76]; federal courts are except from coverage pursuant to §551(1)(B) FOIA
167 S Rodrick ‘Open Justice, the Media and Avenues of Access to Documents on the Court Record’ (2006) 29(3)
UNSWLawJl, 90
161
162
46
First Amendment right of access
Although the constitutional right of access has largely been discussed and developed in relation
to criminal proceedings,168 District Courts and the Court of Appeal have also applied the
presumptive right in civil proceedings.
Whereas the common law right of access applies to all materials characterized as a ‘judicial
document’, for a document to be subject to the constitutional right of access, two additional
requirements must be met. Firstly, the document in question must be shown to fall within the
category of documents which have traditionally been accessible by the public and media.169
Secondly, the court must satisfy itself that policy reasons in favour of the presumption applying
are not outweighed by potential procedural (or material) frustration.170 Once these two criteria
are satisfied, the presumption can nevertheless be qualified if there are ‘specific, compelling “on
the record” reasons’ for denying access.171 However, in restricting or qualifying access under the
constitutional right, a court must determine and apply the least restrictive method available of
protecting the legitimate competing interest.172 For example, a court cannot grant the sealing of
records where redaction (for example) would achieve the policy objectives of nondisclosure.173
Despite the different legal tests, in essence the presumptive right requires the balancing of the
public interest in accessing court documents with any competing policy considerations militating
nondisclosure. According to Rodrick, although broader, the common law presumption in favour
of access is more easily displaced than the constitutional right of access. However the
constitutional right of access applies to a more narrow range of documents.
QUESTION 3: DISTRIBUTION OF COURT DOCUMENTS
To what extent are the parties permitted to distribute court documents provided by another
party through compulsion, prior to the matter being called in open court? Is the position
different with regard to documents in administrative reviews?
In Re Providence Journal Co., Inc. 293 F.3d 1 (1st Cir. 2002) 27
As Rodrick (2006) notes, there is significant overlap between the analysis in this context and whether a document
has been categorized as accessible under the common law. See: Richmond Newspapers Inc v Virginia, 448 US 555 (1980)
589; Globe Newspaper Co v Superior Court for the County of Norfolk, 457 US 596 (1982) 605; Press-Enterprise Co v Superior
Court of California for the County of Riverside, 478 US 1 (1986) 8
170 Globe Newspaper; US v Corbitt
171 S Rodrick ‘Open Justice, the Media and Avenues of Access to Documents on the Court Record’ (2006) 29(3)
UNSWLawJl, 90
172 Globe Newspaper, at 609
173 Press-Enterprise, at 512
168
169
47
In Seattle Times Co. v Rhinehart, the Supreme Court held that ‘pretrial dispositions and
interrogatories are not public components of a civil trial.’174 As such, the common law and
constitutional presumptions in favour of access do not generally apply to material produced in
discovery not filed with the court as such documents are not considered ‘judicial records’.175
Non-parties to a dispute have no legal right to ‘demand access to discovery materials which are
solely in the hands of private party litigants’,176 or in circumstances where discovery occurs
without documents being filed with the court.177 However, absent private agreement between the
parties or a protective order of the court, nothing prevents a party in possession from willingly
distributing material produced under compulsion to non-parties. This right is presumptively
protected under the First Amendment.178
However, parties’ ability to distribute such material to non-parties is subject to the inherent
discretion of the court to issue a protective order restricting dissemination.179 Rule 26(c) of the
Federal Rules of Civil Procedure (FRCP) stipulates the grounds for restraining access to (and
distribution of) materials. A party producing discovery material may apply to do so under a
protection order restraining distribution. Parties may seek to have such orders made either in
terms of particular documents or in ‘blanket’ terms.180 A party seeking to limit the distribution of
material produced in discovery must demonstrate ‘good cause’ exists to do so. As with
applications to seal filed documents, applications to restrict dissemination through protective
order must be assessed on a case-by-case basis.
Rule 26(c)(1)(A) FRCP permits a court to ‘for good cause, issue an order to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or expense’ by
‘forbidding the disclosure of discovery’. Pursuant to Rule 26(c)(1), courts may only issue
protective orders limiting dissemination if the parties have failed to reach private agreement. The
‘good cause’ standard requires the party seeking the protection order to demonstrate that
disclosure would cause a specific, serious injury going beyond a vague or unsubstantiated
harm.181 In Cipollone v Liggett, it was held that the ‘good cause’ standard is less stringent than the
‘least restrictive means’ standard applied in relation to First Amendment access.182
467 U.S. 20 (1984) 33
United States v. Amodeo, 71 F.3d 1044 (2d Cir.1995) 1053
176 Public Citizen v. Liggett Group, Inc., 858 F.2d 775 (1st Cir. 1988) 780
177 Bond v. Utreras 585 F.3d 1061 (7th Cir. 2009) 1066
178 See, for example, Jepson, Inc. v. Makita Elec. Works, Ltd., 30 F.3d 854 (7th Cir. 1994) 858
179 Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994) 785–86
180 Crew Tile Distribution v. Porcelanosa USA, Inc. (D. Col. 2014) No. 13-cv-03206-WJM-KMT
181 See, for example, Foltz v. State Farm Mutual Auto Insurance Co., 331 F.3d 1122 (9th Cir. 2003) 1130
182 Cipollone v.Liggett Group, Inc., 785 F.2d 1108 (3d Cir. 1986) 1118–21
174
175
48
Non-parties to proceedings may seek to intervene to challenge the granting of a protective order.
Non-parties must show standing. However, news media organisations are generally considered to
have standing to intervene.183 In practice, individuals, news media and other public interest
organisations frequently seek to intervene in civil and judicial review proceedings to challenge
confidentiality orders concerning material produced under subpoena.184
CONCLUSION
Public access to court documents in federal civil proceedings in the US is subject to common law
and constitutional protections resulting in a ‘strong’ presumption in favour of public access.185 In
respect of each, different legal tests apply in determining whether a particular document or class
of documents is subject to the presumptive right. Similarly, different standards apply in
determining whether competing interests in favour of nondisclosure displace or restrict the
presumption of access.
The common law right of access applies to all material constituting a ‘judicial document’, while
the First Amendment right of access applies to a narrower category of documents. The First
Amendment right of access, if shown to apply, is also subject to a stricter standard, in that courts
use the ‘least restrictive’ standard to limit the right of access. This means that documents must
not be sealed from public access if a less restrictive method of achieving the policy objectives of
non-disclosure is available.
These common law and constitutional presumptions in favour of public access do not apply to
materials produced in pre-trial discovery. Nevertheless, parties to civil proceedings have the
presumptive First Amendment right to disclose material obtained in discovery to third parties,
although this presumptive right of disclosure is subject to the court’s inherent discretion to issue
a protective order restraining disclosure of pre-trial discovery materials. Pursuant to Rule 26(c)
FRCP, a party seeking a protective order must demonstrate ‘good cause’. Third parties, provided
they have standing, may intervene to challenge a motion for a protective order on discovery
materials. In practice, news media organisations are generally considered to have standing to
intervene.
183 Grove
Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893 (7th Cir. 1994) 898
for example, Arnold v Cth of Pennsylvania Department of Transport, 477 F.3d 105 (3rd Cir. 2007)
185 Brown & Williamson, at [89]
184 See,
49
V. NEW ZEALAND
INTRODUCTION: LEGAL BACKGROUND AND REFORMS
The legal position prior to 2009
Prior to 2009, and in accordance with the High Court Rules (HCR), members of the public could
apply for leave to the Court Registrar to ‘search, inspect and copy’ any file or court document
before the document was introduced in evidence in open court, and would be granted leave if
they could show ‘a genuine or proper interest’ for seeking access.186 The grant of leave was
subject to judicial oversight to impose conditions,187 such as the redaction of sensitive
commercial information.
Many cases addressed the issue of what constitutes a ‘genuine or proper interest’, which was
considered to be a question of fact. The following series of cases illustrate what kinds of interest
sufficed as a bone fide public interest.
In Currie v YMCA of Hamilton Inc,188 a newspaper applied for access to the liquidator’s report
prior to the hearing of the winding up petition in relation to the YMCA. The court granted
access, even though the newspaper was a creditor of the YMCA, because it was held that the
substantive reasons given in favour of allowing access were based on the public interest. The
newspaper was described as ‘the voice of the community’ which has ‘an interest in the welfare
and future of the YMCA […] It is not that type of interest which would be considered merely
casual or prurient or officious. It is genuine.’189 The Court rejected opposing arguments that
granting access would hinder ongoing business negotiations between the YMCA and the City
Council, instead holding that:
persons who make decisions for which they are accountable will be called to account. People
who make such decisions are expected to be accountable … the Hamilton City Council which
represents the community and will no doubt consider any proposals made with due regard for all
the interests which it must reconcile for the sake of the community. It is appropriate that matters
which might be taken into account by such organisations be known publicly in this case. The
decisions ought be made on a disclosed basis.190
In Pratt Contractors Ltd v Palmerston North CC,191 Pratt instituted proceedings against the City
HCR, Rule 66
HCR, Rule 66(9)
188 Currie v YMCA of Hamilton Inc (1989) 2 PRNZ 343 (HC)
189 Currie v YMCA of Hamilton Inc (1989) 2 PRNZ 343 (HC) at [6]-[7]
190 Currie v YMCA of Hamilton Inc (1989) 2 PRNZ 343 (HC) at [14]-[15]
191 Pratt Contractors Ltd v Palmerston North CC (1992) 5 PRNZ 556 (HC)
186
187
50
Council in respect of an unsuccessful tender for the construction of a flyover. A reporter was
permitted to search the file prior to the matter coming into open court. The court held that the
proceedings were of considerable interest and importance to the citizens of Palmerston North,
therefore concluding that:
The application of the law to this request leads to a clear result. The Manawatu Evening Standard
is the city's only daily newspaper. The proceedings involve the City Council and the damages
claimed are considerable. So the importance of the proceedings to the city and its citizens is
obvious. The general issue of roading between the city and Massey University, which is the
background to the proceedings, is itself no doubt of considerable importance and interest. Ms
Rankin, and the Manawatu Evening Standard, have a genuine and a proper interest in the
proceedings. As such they must be given leave to search.192
The case of McCully v Whangamata Marina Society Inc193 involved a judicial review of a ministerial
decision to not grant a planning application of national importance. The court granted leave to
an opposition MP to search the documents, holding that:
His interest is not frivolous or vexatious or merely prurient. He has a real interest, and it is solidly
based in the sense that Mr McCully wishes to inform himself (by access to the Court record) as
to the nature and basis of the decision made by the Minister, and the basis on which it is said to
rest, in the High Court papers. We consider that his ‘standing’ is clear. It is distinctly arguable that
he has a greater interest than other citizens, as a Member of this country’s Parliament, to keep
himself fully and properly informed, and he has significant public responsibility as the opposition
spokesperson on conservation.194
The 2009 and 2011 reforms
In 2006, the New Zealand Law Commission released a report proposing a reversal of the
presumption, i.e. arguing that there should be a statutory presumption in favour of open justice
and public access to court documents and that ‘information should generally be available, unless
there are good reasons for not permitting access’,195 such as trade secrets or sensitive
information.196
The New Zealand Government did not adopt these recommendations, but the law regarding
access to court documents was substantively amended in 2009197 and in respect of discovery in
2011.198 The High Court Rules have been duplicated in the District Court Rules and form the
default position for other specialist courts such as the Environment Court. Litigants should
therefore be wary of cases preceding these reforms that may at best contain persuasive reasoning
Pratt Contractors Ltd v Palmerston North CC (1992) 5 PRNZ 556 (HC) at [6]-[7]
McCully v Whangamata Marina Society Inc [2007] 1 NZLR 185 (CA)
194 McCully v Whangamata Marina Society Inc [2007] 1 NZLR 185 (CA) at 46
195 Law Commission Access to Court Records (NZLC R93, 2006) at [5]
196 Law Commission Access to Court Records (NZLC R93, 2006) at [13]
197 By the High Court (Access to Court Documents) Amendment Rules 2009 with effect from 12 June 2009
198 By the High Court Amendment Rules (No 2) 2011 (SR 2011/3511) with effect from February 2012
192
193
51
rather than precedent.
In relation to access to court documents, the fundamental result of the 2009 reforms is that
‘open justice is a principle [to be weighed in the balance] not a free-standing right’ or
presumption.199 The High Court Rules now grant a wide discretion to the court to grant access
and list a number of criteria that must be weighed in the balance, including ‘the principle of open
justice, namely, encouraging fair and accurate reporting of, and comment on, court hearings and
decisions’, and ‘the protection of confidentiality, privacy interests (including those of children
and other vulnerable members of the community), and any privilege held by, or available to, any
person’.200
There is no statutory hierarchy amongst these principles and none of the listed principles assume
automatic dominance (Schenker AG v Commerce Commission).201 The factual context will therefore
be critical. We have been unable to find any cases concerned with access to court documents in
the administrative law context, post reform. However, a useful obiter comment was made in the
High Court decision on Schenker, suggesting that in general, a ‘recognizable and legitimate’ public
interest would be a factor to weigh in favour of access.202 The High Court decision in Schenker
was upheld on appeal, but this view was not repeated by the Court of Appeal (and indeed on the
facts of the case – where there had been voluntary disclosure to the Commerce Commission the public interest actually favoured no access because voluntary co-operation with the
Commission might be imperiled).
In relation to documents obtained following discovery, the 2011 reforms codified the common
law by: (i) providing that a party who receives copies of documents following discovery may only
use them for the purposes of the litigation in which the documents were discovered; (ii)
preventing them from using the documents for any other collateral purposes; and (iii) prohibiting
them from making them available to any other person unless the document has been read out in
open Court.203 The Court has sanctioned the use of discovered documents for the purposes of
closely related proceedings and there appear to be no further exceptions in decided NZ cases.
However, obiter comments of the Court of Appeal suggest that release on the grounds of public
interest might be possible in the event of a ‘compelling’ situation.204 Unfortunately, it was not
specified what would constitute a ‘compelling’ situation.
Schenker AG v Commerce Commission [2013] NZCA 114 at [36]
HCR Rule 3.16
201 Schenker AG v Commerce Commission [2013] NZCA 114 at [36]
202 ibid. See also discussion in Commerce Commission v Air New Zealand Ltd [2012] NZHC 271 below.
203 McGechan on Procedure, HR8.30.03
204 See discussion in Wilson v White (2005) 17 PRNZ 537 (CA) below.
199
200
52
QUESTION 2: ACCESS TO COURT DOCUMENTS
To what extent are members of the public or media permitted to access court documents in
application proceedings (and particularly administrative reviews) prior to the matter being
called in open court?
Relevant legislation or court rules
The rights of the public to access Court documents are very limited except during the hearing
process. In general, access is restricted to the formal court record.205 However, any person may
apply to inspect a document that would otherwise be restricted. During the substantive hearing
stage, an application is made under HCR 3.9, and at any other stage of a proceeding – including
at a time ‘prior to the matter being called into open court’ - an application is made informally to
the Court Registrar under HCR 3.13 and determined by a Judge, applying the criteria set out in
HCR 3.16.206 These rules apply to all civil law proceedings including administrative reviews.
HCR 3.16 states:
High Court Rules r. 3.16 Matters to be taken into account
In determining an application under rule 3.13, or a request for permission under rule 3.9, or the
determination of an objection under that rule, the Judge or Registrar must consider the nature of,
and the reasons for, the application or request and take into account each of the following matters
that is relevant to the application, request, or objection:
(a) the orderly and fair administration of justice:
(b) the protection of confidentiality, privacy interests (including those of children and other
vulnerable members of the community), and any privilege held by, or available to, any person:
(c) the principle of open justice, namely, encouraging fair and accurate reporting of, and comment
on, court hearings and decisions:
(d) the freedom to seek, receive, and impart information:
(e) whether a document to which the application or request relates is subject to any restriction under
rule 3.12:
(f) any other matter that the Judge or Registrar thinks just.
Case law
In Commerce Commission v Air New Zealand Ltd207 the High Court explained the approach to be
taken to HRC 3.16:
There is therefore nothing in the words of [r 3.16] to indicate that primacy is to be given to any
of the six particular matters, only one of which is the principle of open justice. To the contrary,
the rule states that they are all to be weighed in the balancing. As is usual with such lists of
matters, some will be relevant to the particular request and some will not, and some matters may
As defined in HCR 3.5
McGechan on Procedure, HR 3.7.01
207 Commerce Commission v Air New Zealand Ltd [2012] NZHC 271
205
206
53
assume primacy given the particular facts. But none has automatic primacy.208
“… [open justice] is just one of the matters to be taken into account, and there is no
presumption in favour of disclosure.”209
“It is significant that the principle of open justice is given a limited definition in the rule.”210
This decision was upheld by the Court of Appeal in Schenker AG v Commerce Commission.211 The
High Court made obiter comments in relation to ‘public interest’ factors:
In addition to the six listed matters, r 3.16 requires the Court to consider the nature of and the
reasons for the request. They form a background for the assessment of the relevant matters that
are then listed. They will tend to drive the analysis of the six factors. For instance if the purpose
is publication to the public by the media, that may lead to a different focus than if the application
was by a private person for personal or commercial purposes. Inevitably a Court will be less
sympathetic to an application which does not have a recognisable and legitimate public or private
purpose.212
Various other cases have also addressed the balancing exercise since the 2009 reforms. In Re
Wang, ex part Westpac New Zealand Ltd,213 the Overseas Investment Office applied to search the
Court record relating to a bankruptcy case. The application was opposed on the ground that it
would involve the disclosure of confidential information, including a compromise proposal that
had not yet been approved. The Court noted that permission had already been granted to the
media to inspect the insolvency proposal, and held that the orderly and fair administration of
justice and principle of open justice outweighed any confidentiality or privacy interests.
In NZX Ltd v Ralec Commodities Pty Ltd,214 the media applied for access to court documents from
a partially-heard commercial dispute. Although the Court attached ‘less weight to the interest of
NZX as a litigant deserving of respect for the private nature of its dispute [because] as a publicly
listed entity […] NZX must expect relatively close media scrutiny when it resorts to litigation in
its own interests’,215 it nevertheless refused access on the grounds that the public interest in the
detail was low. The judgments already delivered provided sufficient detail for reporting purposes.
In Rice v Heaney,216 the Court denied a media request for access to court documents in a case
relating to the dissolution of a legal partnership. The Court held that the dispute was essentially a
Commerce Commission v Air New Zealand Ltd [2012] NZHC 271 at [17]
Commerce Commission v Air New Zealand Ltd [2012] NZHC 271 at [29]
210 Commerce Commission v Air New Zealand Ltd [2012] NZHC 271 at [31]
211 Schenker AG v Commerce Commission [2013] NZCA 114
212 Commerce Commission v Air New Zealand Ltd [2012] NZHC 271at [30]
213 Re Wang, ex part Westpac New Zealand Ltd (1763882) HC Auckland CIV-2009-404-7750, 23 September 2010
214 NZX Ltd v Ralec Commodities Pty Ltd [2012] NZHC 1641
215 NZX Ltd v Ralec Commodities Pty Ltd [2012] NZHC 1641 at [13]
216 Rice v Heaney [2014] NZHC 1311
208
209
54
private one involving sensitive and private information.217
Actual practice
McGechan notes that ‘there is no clear common theme in the cases, and it may take some time
for the courts to develop a unified approach to this type of situation. Where confidential
information is contained in the material, the court is likely to be reluctant to allow access’, as was
the case in Schenker AG v Commerce Commission.218
QUESTION 3: DISTRIBUTION OF COURT DOCUMENTS
To what extent are the parties permitted to distribute court documents provided by another
party through compulsion, prior to the matter being called in open court? Is the position
different with regard to documents in administrative reviews?
Relevant legislation or court rules
The relevant rule for civil proceedings, including administrative reviews, in relation to the
question of whether the parties may distribute documents disclosed prior to open court, is HCR
8.30(4):
High Court Rules 8.30 Use of documents
(1) A party to whom a document has been made available electronically or is produced for
inspection under rule 8.27 or 8.29 may make copies of the document.
(2) On the application of a party to whom a document is produced for inspection under rule 8.27
or 8.29, a Judge may order the person who has control of the document to give the applicant a
legible copy.
(3) An order under subclause (2) may be made on any terms the Judge thinks just, and, in
particular, the Judge may order that—
(a) the applicant pay the reasonable expenses of the other party:
(b) the document be marked to the effect that it is a copy given for purposes of inspection only.
(4) A party who obtains a document by way of inspection or who makes a copy of a
document under this rule—
(a) may use that document or copy only for the purposes of the proceeding; and
(b) except for the purposes of the proceeding, must not make it available to any other
person (unless it has been read out in open court). [Emphasis added]
Case law
The main thrust of HCR 8.30 was expressed as follows in Commerce Commission v Air New Zealand
Ltd:219
As a background factor I bear in mind that documents that are produced in the process of
McGechan on Procedure, HRC3.16.03
Schenker AG v Commerce Commission [2013] NZCA 114
219 Commerce Commission v Air New Zealand Ltd [2012] NZHC 271
217
218
55
discovery cannot be used for any purpose other than the proceedings themselves. The concept is
that where a party is forced by the Rules to disclose documents in proceedings, it is not right that
they can be used then for other purposes against their interest.220
The rationale for the restriction on the distribution of court documents in terms of HCR 8.30
was spelt out in West Harbour Holdings Ltd (in liq) v Tamihere:221
Rule 8.30 of the High Court Rules makes it very clear that documents disclosed on discovery in a
civil proceeding are to be used for the purpose of that proceeding and not for any other purpose.
It is important that the courts maintain a strict policy on that. Discovery is a demanding process.
A party to litigation is required to go to special efforts to set out comprehensively all documents
that relate to the matters in issue and that are within that party's control. That process gives many
litigants cause for concern. It is important for the proper determination of proceedings that
parties comply with the requirements of discovery honestly, faithfully, and to the best of their
efforts. Both sides need to be assured that if they do make disclosure of documents, the
discovery rules will be respected. If they were to have doubts that those requirements would be
honoured, confidence in the process would be eroded and the value of discovery would likewise
be reduced. If it is found that there has been actual misuse of documents disclosed in discovery
in this case, a stern view will be taken.222
Actual practice
Even without the clarification that the present HCR 8.30(4) brings, the New Zealand courts have
long recognised an implied undertaking to court binding upon anyone to whom the document
might come, not to use discovered documents – if it was known to be a discovered document for any collateral or ulterior purpose. In Wilson v White223 the Court of Appeal described this
position as ‘elementary’ and stated:
The reasons are twofold:
(a) The first is a concern that unless there are restrictions on the uses to which discovered
documents can be put, parties to litigation may not comply with their discovery obligations;
and
(b) Secondly, a sense of fairness associated with the privacy expectations of a party who is
required to produce documents for one purpose and is entitled to expect that they will not
be used for another.224
This undertaking is not for ever: once documents are entered in evidence, and so included on the
court file they are effectively in the public domain and the Court saw no sense in continuing the
undertaking at that point. In Wilson, the appellant attempted to defend an allegation that she had
breached the implied undertaking on the grounds of the public interest. The court found against
Commerce Commission v Air New Zealand Ltd [2012] NZHC 271 at [48]
West Harbour Holdings Ltd (in liq) v Tamihere [2014] NZHC 716
222 West Harbour Holdings Ltd (in liq) v Tamihere [2014] NZHC 716 at [9]-[10]
223 Wilson v White (2005) 17 PRNZ 537
224 Wilson v White (2005) 17 PRNZ 537 at [20]
220
221
56
her on the facts, but made the following obiter comments in relation to public interest:
We are aware of no authority which supports the view that a party who is subject to an implied
undertaking as to limited use is entitled to decide unilaterally that the public interest warrants
disclosure. On the other hand there is much authority which indicates that the proper course is to
put the issue to the Court in the context of an application for release from the undertaking; see
for instance Watkins v JA Wright (Electrical) Ltd [1996] 3 All ER 31. That Dr Wilson acted without
seeking leave of the Court and without even the courtesy of advising the then defendants of her
intentions (thus providing them with the opportunity to seek an injunction) renders this line of
defence untenable. Had she sought the leave of the Court to put the documents before the
College, it is perfectly clear that she would have been unsuccessful. Care must be taken to ensure
that any exception does not swamp the rule. It is common place for parties to litigation to allege
misconduct against others and to seek discovery in support of such allegations. To allow
discovered documents which reveal (or are thought to reveal) such misconduct to be disclosed
for other purposes on the basis of a public interest exception would be very destructive of the
underlying principle. Accordingly, permission to permit collateral use could only be properly
granted in situations far more compelling than the one which confronted Dr Wilson on 12
December 2002.225
CONCLUSION
There is no right or automatic presumption of public access to court documents prior to the
matter being called into open court. Members of the public may seek leave to be granted access
to such documents. The court has a wide discretion whether to grant leave, but in making its
decision consideration must be given to certain principles, including both the principles of open
justice and the protection of confidentiality. None of the stated principles assumes automatic
dominance, and there is no hierarchy between the principles. The factual context is critical.
Public interest will be a factor that may be used to argue for access, but this factor will not be
given automatic priority.
In terms of documents discovered following a court order, the law prevents disclosure to third
parties or for collateral purposes. The Court of Appeal has suggested that an application might
be made to court for disclosure on the grounds of public interest, but the situation would have
to be ‘compelling’.226 We have been unable to find any New Zealand cases where this has
occurred subsequent to the 2011 reforms.
225
226
Wilson v White (2005) 17 PRNZ 537 at [63]-[64]
Wilson v White (2005) 17 PRNZ 537
57
VI. INDIA
QUESTION 2: ACCESS TO COURT DOCUMENTS
To what extent are members of the public or media permitted to access court documents in
application proceedings (and particularly administrative reviews) prior to the matter being
called in open court?
Introduction
There are two ways of accessing court documents in India: through the Right to Information Act
2005 (RTI Act) and the rules of procedure governing the relevant court. The Supreme Court
Rules 2013 have illustratively been studied here.
Right to Information Act 2005
Legislation
Section 3 of the RTI Act recognises the right to information for all Indian citizens. An
application for information can be made to designated Information Officers.227
‘Information’ includes ‘material in any form’ including documents and records.228 The word
‘record’ has been very broadly defined to include ‘any document, manuscript and file.’229 This
right lies against any ‘public authority’, including all authorities set up under the Constitution, or
under central or state laws.230 This thus includes the judiciary, as well as administrative tribunals.
The statutory definition of public authorities has been held to be exhaustive.231
It is noteworthy that in trying to access information from a public authority, the applicant need
not furnish any reason for wanting to access the information.232 If the application for
information is rejected, the Information Officer is also obliged to provide reasons for this
rejection.233
Section 5 of the Right to Information Act 2005 (RTI Act)
ibid, Section 2(f)
229 ibid, Section 2(i)(a)
230 ibid, Section 2(h)
231 Thalappalam Service Cooperative Bank v Kerala (2014)1CompLJ319(SC) at [43]
232 Section 6(2) of RTI Act
233 ibid, Section 6(8)
227
228
58
The RTI Act also specifies the grounds on which an application for information can be refused.
While this list is quite extensive,234 there is one that seems analogous to the one invoked in the
case at hand. This is Section 8(1)(d) which exempts ‘information including commercial
confidence, trade secrets or intellectual property, the disclosure of which would harm the
competitive position of a third party, unless the competent authority is satisfied that larger public
interest warrants the disclosure of such information’. If the exempted part can be severed from
the remaining information, then accessed may be provided to a truncated version.235
Additionally, if the application deals with information which relates to a third party, or which has
been supplied by a third party who has treated it as confidential, such third party is allowed to
make a representation to restrict access to the information, and the Information Officer to
whom the application is made must take these representations into account in deciding whether
or not to allow the application.236
Where there is a conflict between the RTI Act and delegated legislation, the former will prevail
over the latter.237
Case Law
The Supreme Court has observed that an application under the RTI Act can be made under
Section 6, not just by a citizen, but by any person. This is based on a literal interpretation of
Section 6.238
The Supreme Court has further held that there is no general obligation to construe the
exemptions to the right to information narrowly, and a purposive interpretation needs to be
made.239 This observation that a purposive interpretation must be given has also specifically been
made in relation to the phrase ‘public interest’ which the Court has identified as an ‘elastic’ term
whose meaning depends on the time and context within which it is discussed.240 The purposes of
the RTI Act have been described as follows:
Greater transparency, promotion of citizen-government partnership, greater accountability and
reduction in corruption are stated to be the salient features of the Act of 2005. Development and
ibid, Sections 8 and 9. According to Section 24, the RTI Act is also inapplicable to certain intelligence and
security organisations, as specified in the Second Schedule of the Act.
235 ibid, Section 10
236 Ibid Sections 6(7) and 11
237 CBSE v Aditya Bandopadhyaya (2011)8SCC497 at [18]
238 CIC v Manipur (2011)15SCC1 at [25]
239 CBSE v Aditya Bandopadhyaya (2011)8SCC497 at [33]
240 BPSC v Saiyed Hussain Abbas Rizwi (2012)13SCC61 at [23]
234
59
proper implementation of essential and constitutionally protected laws such as Mahatma Gandhi
Rural Guarantee Act, 2005, Right to Education Act, 2009, etc. are some of the basic objectives of
this Act.241
In respect of the limitations, the Supreme Court has added that in addition to the exemptions
provided under the RTI Act, there are also constitutional limits to the right to information, for
instance the right to privacy of the people about whom information is being sought, which is
recognized as part of the right to life under Article 21 of the Indian Constitution.242 In cases
where a constitutional limitation is invoked, a balancing exercise must be carefully carried out.243
In another case,244 the fact that the Constitution itself provides that the detainee in preventive
detention cases is to be served the grounds of detention when he or she is actually detained was
taken to mean that the RTI Act cannot be used to ask for these grounds before the detention has
been made—statutory provisions cannot override constitutional ones.
The Supreme Court has upheld an observation of the Delhi High Court245 explicitly stating that
information disclosed under the RTI Act 2005 becomes public information which can then be
disclosed to the world at large.246
Section 8(1)(d) specifically was discussed in ICAI v Shaunak Satya247 where the instructions,
questions and model answers of a competitive exam conducted by a statutory body set up for
this purpose were found to fall outside of the exemption after the exam was over, since at that
stage they do not harm the competitive interests of any third parties (claimed in this case, to be
other people writing the exam).
Supreme Court Rules 1996
Under Article 145 of the Constitution, the Supreme Court is empowered to make rules to
regulate its practice and procedure. An alternate route248 to access documents is found in Order
X of the Supreme Court Rules 2013. Under this provision, only parties to the case ‘may apply to
the concerned Registrar and shall be allowed to search or inspect all pleadings and other
Namit Sharma v Union of India (2013)1SCC(LS)244 at [33]
BPSC v Saiyed Hussain Abbas Rizwi (2012)13SCC61 at [11] to [13]. Note however, that Section 8(1)(j) provides a
similar exemption which has been interpreted as including, for example, information disclosed by a third party in tax
returns that has no bearing on public interest (Girish Ramchandra Deshpande v CIC (2013)1SCC212)
243 BPSC v Saiyed Hussain Abbas Rizwi (2012)13SCC61 at [24]
244 Subhash Popatlal Dave v Union of India (2012)7SCC533
245 Arvind Jejriwal v CPIO AIR 2010 Del 216 at [25]
246 RK Jain v Union of India (2013)14SCC794 at [15]
247 ICAI v Shaunak Satya (2011)8SCC78
248 Mr. Rakesh Kumar Gupta vs Supreme Court of India CIC Appeal No. CIC/WB/A/2009/000553 which held that rules
under Article 145 provide an alternative route, though the Rules under discussion in that case have since been
replaced by new ones.
241
242
60
documents or records in the case.’249 A 24 hour period of notice must be given in such cases, and
access is granted only in the presence of an officer of the Court.250 The granting of such access
does not come with the right to make copies of the documents in question, though notes might
be made.251 No record or document can be taken out of the custody of the Court without the
permission of the Court.252
Order XIII further provides that a party to the proceedings is entitled to receive a copy of ‘all
pleadings, judgments, decrees or orders, documents and deposition of witnesses made or
exhibited in the said proceeding.’253 Such copies can be made available to non-parties only if he
or she demonstrates ‘a good cause.’254 However, no person is entitled to receive a copy of any
document that is of a confidential nature, or which the Chief Justice or the Court decides to keep
in sealed cover or decides is of confidential nature, or the publication of which is against the
interests of the public, ‘except under and in accordance with an order specially made by the
Chief Justice or by the Court.’255 What qualifies as ‘confidential’ or the ‘interest of the public’ has
not been defined in Order I, which provides rules for interpretation.
Notably, the Supreme Court has powers to dispense with these Rules if it considers this to be
‘just and expedient.’256 Every High Court is also vested with similar rule-making powers in
respect of itself,257 and all other courts and tribunals that fall within the territory over which it
exercises jurisdiction.258
Actual practice: the interface between the RTI Act and the court rules
From the previous discussion, it becomes clear that facially there are two ways of acquiring
documents: the first is to access them under the RTI Act, and the second to demonstrate ‘good
cause’ under the Rules of the concerned court.
From the perspective of open and transparent governance, the RTI route is clearly preferable. It
is time-bound and less demanding on the applicant. Facially, the RTI Act provides a general right
to information limited only by enumerated, exhaustive exceptions listed in Article 8. No
Rule 1
Rule 3
251 Rule 2
252 Rule 3
253 Rule 1
254 Rule 2
255 Rule 7
256 Order LV
257 Constitution of India, Article 225
258 Constitution of India, Article 227
249
250
61
particular exception – other than those protecting information given in confidence, patents and
so on – seems to exclude documents in the possession of the courts. That Section 22 of the the
RTI Act overrides all other legislation points us in this direction as well. Even the Supreme
Court's dicta highlighted earlier support a broad and expansive understanding of the RTI Act. In
essence, since the RTI Act is prohibitory, not permissive, we can safely say that it does not bar
applications to acquire court documents. All these factors point to the conclusion that this
presents a clear route to transparency.
The devil, however, lies in the details. In practice, courts disclose judicial documents (as opposed
to administrative documents related to the court’s functioning) only to parties, or those related to
the proceedings in some manner (for instace, through a caveat, third-party injunction, those on
summons). This broadly corresponds to the ‘just cause’ criterion found in the Supreme Court
Rules. Indeed, this does not mean that those unconnected with the case cannot acquire such
information; rather, they are not accorded an automatic right to do so, and may always ‘mention’
the matter before the concerned bench hearing the matter and request a copy of the documents.
The court, at this juncture, exercises its discretion, based on the nature of the subject-matter
(civil or criminal, family settlement or commercial contract), the stage of the proceedings, the
possibility of future compromise between the parties, and the parties’ right to an unbiased
hearing or adverse publicity. Principled limits on this power are hard to draw, since the issue is
concerned under the broad rubric of what is ‘just and equitable’. The unarticulated thrust of this
practice seems to be that the parties’ do not forgo their right to keep documents private by the
mere fact of entering the court process.
The crucial question is whether this practice comports with the broad mandate of the RTI Act.
There has been no judicial pronouncement on this issue yet. Facially, there is a fundamental
disagreement between the two regimes: the Court Rules ask the applicant to show why she wants
the documents; to demonstrate ‘just cause’. The RTI Act does not require the applicant to
provide any reason. The issue depends on how the court interprets the two legal routes.
Perhaps the only time such an issue has come to the courts is in in Registrar of Companies v.
Dharmendra Kumar,259 a case before the Delhi High Court. There, the Court had to decide whether
certain registration documents concerning an incorporated company could be acquired through
the RTI Act, even though an alternate, and more specific, route was available under the
Companies Act, 1956 itself. The Court held that the applicant could not resort to the RTI Act.
259
Registrar of Companies v. Dharmendra Kumar WP(C) 11271/2009.
62
Two reasons were given: first, after a full discussion of the non obstante Section 22 in the RTI Act,
the Court held that the special law must prevail over the general RTI Act, which applies ‘to all
kinds of applications’. The Court noted that it ‘would also be a complete waste of public funds
to…maintain two parallel machineries.’ This, it said, was unncessary and wasteful. Secondly, the
Court found a textual basis for its decision in Section 4(2) of the RTI Act itself, which places
public authorities under an obligation to disclose information suo moto so that ‘the public have
minimum resort to the use of this Act to obtain information.’ The argument here was that since
public authorities have made such information available, to permit the RTI Act route also would
make a mockery of Section 4(2). If a public authority has specifically set up a means to acquire
information within its control, the RTI Act exits the picture.
The Dharmendra case represents a realistic view of the Indian judicial system to the RTI Act.
Whilst it is supposed to sustain open and trasparent government, it cannot be expanded to
exclude specific remedies and regimes, or become an unruly Frankensteinian mechanism. The
question then arises whether the procedure under the Court Rules is sufficiently open to exclude
the application of the RTI Act. In turn, this raises the question as to whether the requirement of
‘just cause’ is sufficiently open. The fact that the Supreme Court has incorporated this clause into
its Rules, and that it explains the practice as it happens, suggests that it is.
QUESTION 3: DISTRIBUTION OF COURT DOCUMENTS
To what extent are the parties permitted to distribute court documents provided by another
party through compulsion, prior to the matter being called in open court? Is the position
different with regard to documents in administrative reviews?
The fact that documents have been obtained through compulsion does not change the legal
position. The same standards of ‘just cause’ apply, as discussed above. That said, if documents
produced under compulsion are confidential or have the ability to adversely affect the disclosing
party, as is often the case, this would no doubt be a relevant factor.
Neither does the legal position change if the information relates to the administrative record. All
information is – for this purpose – equally open to disclosure.
Importantly, the legal standards discussed above speak of whether a third party can itself acquire
such documents from the courts. It does not answer the question whether parties to the
proceedings themselves can distribute it to others. There is no legal pronouncement in this
question, nor do the Rules address it. However, naturally, parties who do make such dislocures –
63
which prejudice the proceedings or demonstrate bad faith in proceedings – and thus circumvent
the Rules, stand to sanctions imposed by the court under its inherent powers to enforce its rules
and control the proceedings before the court.
CONCLUSION
While court documents may be obtained under the Court Rules (and possibly under the RTI
Act), the former is the controlling method currently. However, the law is silent on parties directly
distributing materials – the matter being one of propriety first and the risk of court sanctions
residually.
64
VII. NAMIBIA
QUESTION 2: ACCESS TO COURT DOCUMENTS
To what extent are members of the public or media permitted to access court documents in
application proceedings (and particularly administrative reviews) prior to the matter being
called in open court?
Relevant legislation and court rules
The Namibian Constitution does not expressly provide for the right of the public to information,
as is contained in, for example, section 32 of the South African Constitution, 1996. However, the
right to access court documents in application proceedings prior to the relevant matter being
called in open court is can be inferred from other constitutional provisions. Firstly, the right to
the freedom of expression of the press and media is guaranteed by Article 21(1)(a) of the
Namibian Constitution. This is in light of the recognised important role that the media (both
publicly and privately owned) plays in the free flow of information to society as was stated by the
Namibian High Court in Universal Church of The Kingdom Of God (Incorporated Association Not for
Gain) v Namzim Newspaper (Pty) Ltd T/A the Southern Times.260
Secondly, Article 12(1)(a) of the Namibian Constitution guarantees all natural and juristic
persons the right to a public hearing which, by implication, requires open justice. The principle
of open justice is equally recognised under the English and Roman-Dutch common law
traditions of Namibia.261 This right may be interpreted to mean that the public, either directly or
through the press and media, must have access to the court documents prior to the actual
hearing of the matter in a court. Thirdly, the right to academic freedom is recognised by Article
21(1)(b) of the Namibian Constitution; therefore, in the pursuit of their academic interests, the
public may access public documents.
In terms of statutory law, neither the High Court Act of 1990 nor the Supreme Court Act of
1990 expressly regulate issues relating to access of court documents by the public or the media.
However, both the High Court and the Supreme Court are constitutionally262 empowered to
regulate their own procedures and to make court rules for that purpose, and to that end the
Judge-President of the High Court (who is the ex officio Deputy Chief Justice of the Supreme
2009 (1) NR 65 (HC) at para 33
Article 66(1) of the Namibian Constitution; Amoo SK An Introduction to Namibian Law (Windhoek 2008)
262 Article 78(4) of the Namibian Constitution, read together with section 39 of the High Court Act, 1990 and
Section 37 of the Supreme Court Act, 1990
260
261
65
Court263) has in terms of vested statutory powers264, made Rules of the High Court of Namibia265
which came into effect in April, 2014. Given the common legal history shared by Namibia and
South Africa, Rule 131(11) of the High Court of Namibia Rules reads substantially similarly to
Rule 62(7) of the Uniform Rules of Court of South Africa by providing as follows:
A party to a cause or matter and a person having a personal interest therein with leave of the registrar
on good cause shown may, subject to payment of the required court fees, examine any court
process, notice or document in that cause or matter at the service bureau and may against payment
of the required fee request from the service bureau copies of the court process, notice or
document in that cause or matter. [Emphasis added]
As shall be seen indicated from the court practice below, Rule 131(11) is interpreted liberally and
applied to impede access to court documents by the public and media, thereby avoiding legalism.
Case law
The Namibian courts have on numerous occasions been called upon to assert the rights of the
media in the exercise of their generic functions. In The Free Press of Namibia (Pty) Ltd v Cabinet for
the Interim Government of South West Africa,266 in a decision delivered before the advent of Namibian
constitutionalism, the High Court likened the role played by the press in a democratic society to
that of a public watchdog, with a duty imposed upon it to impart information and ideas on
political issues and on other areas of public interest and the public right to receive them. In
Trustco Group International Ltd and Others v Shikongo267, the Supreme Court of Namibia recognised
that media reporting and commentary on government affairs, in the context of the case, is one of
the key ways of holding government accountable to the people.
With respect to the personal interest requirement in Rule 131(11) of the High Court of Namibia
Rules, although no challenge has been brought against the provision, the interpretation of
‘interest’ has been considered by the courts. In Uffindell v Government of Namibia268, where the
applicant sought the review of administrative action, the High Court, in interpreting the direct
and substantial interest requirement, noted that, ‘what will generally not suffice is […] an interest
which is abstract, academic, hypothetical or simply too remote. Considerations such as that the
Article 80(1) of Namibian Constitution
Section 39 of the High Court Act, 1990
265 Rules of the High Court of Namibia published in Government Notice No. 4 of 2014 (as amended).
266 1987 (1) SA 614 (SWA) at 623 where is was remarked that:
If freedom of speech is to have any significance in a democratic country, its concomitant, freedom of the
press, must be recognised because it is only by reaching a large number of people and rallying their support
that these freedoms can be utilised for the benefit of society.
267 [2010] NASC 6
268 Uffindell v Government of Namibia 2009 (2) NR 670 (HC)
263
264
66
interest is “current”, “actual” and “adequate” are vital in assessing whether a litigant has standing
in the circumstances of a case.’
Actual practice
In terms of the actual practice of the High Court of Namibia, the day-to-day administration of
the High Court lies with the Registrars’ office. The filing system is manual and paper-based. As
per the practice in place, as soon as a document relevant to particular review application
proceedings is filed with the office of the Registrar, it becomes a public document. However,
only parties who are privy to the matter, persons who have an interest in the matter or the media
may access the file containing the court documents. Procedurally, a request for the file must be
made one day prior to the day of its perusal. This procedural process is justified in order to
prevent the removal of documents by persons with malicious motives or the negligent loss of
such documents. Moreover, although copies of the documents can be made at the cost of the
person requesting then, none can be removed from Registrar’s office premise. This is not a
limitation upon accessing court documents, but only serves as an administrative procedural
safeguard aimed at protecting court documents from interference, particularly in light of the
paper-based nature of the filling system.
QUESTION 3: DISTRIBUTION OF COURT DOCUMENTS
To what extent are the parties permitted to distribute court documents provided by another
party through compulsion, prior to the matter being called in open court? Is the position
different with regard to documents in administrative reviews?
The Rules of the High Court of Namibia of 2014 outline the procedure to be followed for
purposes of review application proceedings in Rule 76(1). This rule contains a corresponding
obligation as that in Rule 53(1)(b) of the Uniform Rules of Court of South Africa. It provides
that:
All proceedings to bring under review the decision or proceedings of an inferior court, a tribunal,
an administrative body or administrative official are, unless a law otherwise provides, by way of
application directed and delivered by the party seeking to review such decision or proceedings to
the magistrate or presiding officer of the court, the chairperson of the tribunal, the chairperson
of the administrative body or the administrative official and to all other parties affected.
Unfortunately, there is no reported Namibian case law available on this issue.
67
CONCLUSION
Namibian law allows for the public and media to access court documents prior to a matter
having been heard in court. This can be inferred from the constitutional protections of free
speech and academic freedom, as well as the common law principle of open justice, which is
firmly recognised and embedded in Namibian law. To gain access to such documents, the
applicant must have a personal interest in the matter and pay the required fee. The only
restrictions to access exist in the form of administrative practices enforced by the office of the
Registrar aimed at preventing loss or damage of documents.
68
VIII. KENYA
QUESTION 2: ACCESS TO COURT DOCUMENTS
To what extent are members of the public or media permitted to access court documents in
application proceedings (and particularly administrative reviews) prior to the matter being
called in open court?
Legislation
A Freedom of Information Bill has been pending in the Kenyan Parliament for some time now,
but until it is passed into law, there is no legislation that specifically deals with access to court
documents. The starting point for answering this question must therefore be section 35 of the
Kenyan Constitution which entrenches the right of access to information. According to section
35(1)(a), every Kenyan citizen enjoys an unqualified right of access to information held by the
state. In this regard, Kenyan law distinguishes between public documents and private documents.
According to section 79(1)(a) of the Evidence Act,269 public documents include those ‘forming
the acts or records of the acts’ of all judicial bodies. Thus all court documents are generally
accessible as public documents under the Act and section 35 of the Constitution, and no
apparent distinction is made between access to documents prior to or after the matter being
called in open court
Case Law
Various cases have confirmed that court documents are public documents and therefore fall to
be dealt with under article 35(1)(a) of the Constitution – meaning that they are openly accessible
to the public. Courts have held that Kenyan law on access to information has, as its basis, a
principle of maximum disclosure when dealing with public bodies.
In this regard, the case of Njuguna S. Ndung’u v Ethic & Anti-Corruption Commission held:270
The principle of maximum disclosure establishes a presumption that all information held by
public bodies should be subject to disclosure and that this presumption may be overcome
only in very limited circumstances and that public bodies have an obligation to disclose
information and every member of the public has corresponding right to receive information.
Act 12 of 2012.
Njuguna S. Ndung’u v Ethic & Anti-Corruption Commission [EACC & 3 others [2014] Petition 73 of 2014 Kenya Law
Reports 2015
269
270
69
It is now trite in Kenyan Law that courts fall within the definition of ‘public bodies’ and are
therefore bound by the maximum disclosure principle. In this regard, the court in the Ndung’u
held as follows:271
I also endorse the definition of public bodies to include all branches and levels of
government including local government, elected bodies, bodies which operate
under a statutory mandate, nationalised industries and public corporations, nondepartmental bodies or quasi-non-governmental organisations, judicial bodies,
and private bodies which carry out public functions.
According to the court in Nairobi Law Monthly Company Limited v. KENGEN & Edward Njorog,272
it is also a general principle of Kenyan Law that when one makes a request for a public
document held by a public body (which includes courts), they do not need to show any particular
interest or reason. The Ndung’u case also confirmed this and held as follows:273
Further the exercise of this right should not require individuals to demonstrate a
specific interest in the information. Where therefore a public authority seeks to deny
access to information, it should bear the onus of justifying the refusal at each stage of
the proceedings.
We can conclude from the cases that (i) court documents are public documents openly accessible
to the public at any state of the proceedings; (iii) the access requester need not show an interest
or reason in order to get access; (iii) the onus is on the denying court to provide the requester
with good reasons should access be denied.
Actual Practice
Day-to-day practice in Kenya seems fairly simple and is reflected in, and guided by, the recently
adopted High Court Registry Operation Manual.274 The process is as follows:275 the requester
makes a request in writing which is acknowledged on receipt by imposing a date stamp. The
request must be made a day earlier where it is external. A specific form is then filled to make a
request for perusal, which will be possible once a small perusal fee is paid. There do not seem to
be any major obstacles in practice for the public to access court documents in Kenya. Also, no
apparent distinction between ordinary and administrative review proceedings exists in this
regard.
Njuguna S. Ndung’u v Ethic & Anti-Corruption Commission [EACC & 3 others [2014] at para 43
Nairobi Law Monthly Company Limited v. KENGEN & Edward Njorog Petition No. 278 of 2011 at para 36
273 Njuguna S. Ndung’u v Ethic & Anti-Corruption Commission [EACC & 3 others [2014] at para 43
274 The Judiciary: High Court Registry Operation Manual, 2013
275 ibid, at 4.1.3
271
272
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QUESTION 3: DISTRIBUTION OF COURT DOCUMENTS
To what extent are the parties permitted to distribute court documents provided by another
party through compulsion, prior to the matter being called in open court? Is the position
different with regard to documents in administrative reviews?
Legislation
The starting point in dealing with this question is article 35(1)(b) of the Constitution which deals
with public access to documents held by private parties. According to the article, every citizen
has the right of access to information held by another person and required for the protection of
any right or fundamental freedom. Such documents are classified by the Evidence Act as private
documents and are to be treated differently to public documents as discussed above.276 With
access to information legislation still to be enacted as mentioned earlier, there is not much in
terms of legislation on this point in Kenyan law. A few cases are instructive in this regard,
although they do not address the issue directly.
Case Law
The cases dealt with here relate to public access to private documents held by another party as
enunciated in article 35(1)(b) of the Constitution. It is submitted, however, that the principles set
out in these cases would apply equally well to cases relating to the distribution of such
documents when obtained by compulsion from another party, before the matter being called in
open court.
In Nairobi Law Monthly Company Limited, it was held that a person wishing to access information
held by a private party under section 35(1)(b) of the Constitution must show two things: (i) the
information is held by the person from whom it is claimed, and (ii) the information sought is
required for the exercise or protection of another right.277
However, the requester must first show that they have unsuccessfully sought access to the
information from the holder before approaching a court. In Omtatah Okoiti v Attorney General and
2 Others, it was held that:278
Before an application is made to court to compel the state or another person to
disclose any information that is required for the exercise or protection of any right or
Section 79(2) of the Evidence Act
Nairobi Law Monthly Company Limited (n 4) at para 56
278 Omtatah Okoiti v Attorney General and 2 Others [2011] eKLR Petition No. 92 of 2011, 18
276
277
71
fundamental freedom, the applicant must first demonstrate that a request for the
information required was made to the state or to the other person in possession of
the same and the request was disallowed. The court cannot be the first port of call.
It is not clear, however, what is meant by the phrase ‘for the exercise or protection of another
right’.
What is clear from the Nairobi Law Monthly Company Limited case, though, is that it will not do for
the requester to simply assert that they need the information in order to publish or disperse it in
exercise their rights to free media and free expression under articles 33 and 34 of the Kenyan
Constitution. This is especially important where the privacy and other rights of individuals might
be affected, and need to be factored into the enquiry.279
While it is not clear which interests will be recognised by the Kenyan courts as being worthy of
protection under article 35(1)(b), and under what circumstances such recognition will follow,
there have been a few dicta from different cases that could be used as guidance in this regard. An
example is a statement from the Industrial Court of Kenya in Ahmed v National Land
Commission,280 to the effect that a requester would have to show that the rights sought to be
enforced are threatened or violated. It would seem, therefore, that when it comes to private
documents in Kenya, the position is that they may be accessed by a requester against the will of
the holder where they are required for the enforcement of a threatened or violated right.
In summary, then, it is submitted that this is the position in Kenyan law: documents obtained
through compulsion from another party can be distributed before a matter has been called to
open court if the object of distribution is the enforcement of a violated or threatened right.
However, the entitlement to request distribution falls on the would be receiver of the
documents, and they would have to request access under section 35(1)(b). Also, unlike in the
case of public documents, it would seem that a court process is necessary in relation to private
documents because the privacy and other rights of the parties to whom the documents belong
need to be factored in.
Actual Practice
As already mentioned, there is no particular guidance on this point in Kenyan law or practice
because the issue is not specifically dealt with in any document. It would seem, however, that in
light of the preceding discussion, a party who seeks the distribution of documents obtained by
279
280
Nairobi Law Monthly Company Limited (n 4) para 67 – 73
Ahmed v National Land Commission Petition 24 of 2014 Kenya Law Reports 2015 at para 22
72
compulsion before a matter has been called in open court would have to initiate urgent
proceedings in this regard. They would then have to convince the hearing court that distribution
is required for the enforcement of a violated or threatened right, and the court will have to factor
in the competing rights of those to whom the documents belong. Again, there appears to be no
separate rules for administrative review proceedings.
CONCLUSION
While there are no clear-cut rules that deal specifically with our questions in Kenyan law, there
are broad constitutional, legislative and judicial pronouncements which we can draw from to
answer both questions. The probable position as it stands is that: (i) court documents are public
documents accessible to the public prior to a matter being called in open court, and there is no
need to show an interest in the matter or provide a reason in order to access such documents;
and (ii) documents obtained by a party from another by compulsion and held by that party are
private documents, and are distributable prior to a matter being called in open court only in the
interest of enforcing a violated or threatened right.
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IX. GERMANY
QUESTION 2: ACCESS TO COURT DOCUMENTS
To what extent are members of the public or media permitted to access court documents in
application proceedings (and particularly administrative reviews) prior to the matter being
called in open court?
Relevant legislation or court rules
With regard to court proceedings, the general principle of publicity (Öffentlichkeitsprinzip),
contained in §169 (1) of the Code of Court Procedure (Gerichtsverfahrensgesetz), dictates that the
court hearing (mündliche Verhandlung) be public. This means that as a general rule, members of the
public (including the media) should have access to proceedings, although public access may be
restricted in certain cases, such as youth penal processes.281 However, the right to access to court
documents (Recht auf Akteneinsicht) prior to the matter being called in open court is generally
restricted to the parties and their legal representation.
Access to court documents is specifically regulated by the relative procedural codes. Access to
court documents in respect of civil procedure is governed by § 299 of the German Code of Civil
Procedure (Zivilprozessordnung), which states that ‘the president of the court and his deputy may
allow third parties to inspect the files without the consent of the parties if these third parties
have demonstrated their legitimate interest to his satisfaction.’282
Access to court documents in relation to administrative procedure (Verwaltungprozess) is regulated
by § 100 of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung):
(1) Those concerned can inspect the court files and the files submitted to the court.
(2) Those concerned can have themselves issued by the registry duplicates, excerpts, printouts and
copies at their expense […]
With regard to access to court documents in the context of an administrative act
(Verwaltungsakt),283 § 29 of the Code of Administrative Procedure (Verwaltunngsverfahrensgesetz) and
§ 48 JGG
§ 299(2)
283 Please note: At this point, administrative court procedure has not begun. The inspection of documents afforded
in this section only concerns cases where an official public body/ authority has issued an administrative act or
measure against a specific civilian or private company.
281
282
74
the respective provisions of the Länder (federal states) allow participants but not third parties
access:
(1) The authority shall allow participants to inspect the documents connected with the proceedings
where knowledge of their contents is necessary in order to assert or defend their legal interests […]
(2) The authority shall not be obliged to allow the inspection of documents where this would
interfere with the orderly performance of the authority’s tasks, where knowledge of the contents of
the documents would be to the disadvantage of the country as a whole or of one of the Länder, or
where proceedings must be kept secret by law or by their very nature, i.e. in the rightful interests of
participants or of third parties.
Case law / opinions in legal scholarship
As § 100 of the Code of Administrative Court Procedure284 does not explicitly address the right
of third parties to access court documents before the public court hearing, some argue that § 299
(2) of the Code of Civil Procedure should be applied by analogy.285 According to this view, a
third party may be allowed to inspect the court files without the consent of the parties if they
have satisfactorily demonstrated their legitimate interest in doing so. However, it is important to
note that § 299 (2) implies that while third parties who demonstrate a legitimate interest have a
right to access (anonymised) court documents, they do not have a right to demand excerpts or
copies.
With regard to the analogous application of § 299 (2) of the Code of Civil Procedure, the
question of what exactly constitutes a ‘legitimate interest’ (rechtliches Interesse) is subject to debate.
Legal scholarship suggests that in order to successfully demonstrate a legitimate legal interest, the
third party has to prove that he is in a current legal relationship that is legally or economically
related to the court procedure in question. Case law has further established that mere curiosity or
mere economic interests do not suffice to demonstrate a sufficient legitimate interest.286 This is
especially so if the third person hopes to obtain information from the court documents that
would support their own lawsuit against one of the parties involved (Ausforschungsprinzip).
Both scholarship and case law have established that an academic or research-related interest
Code of Administrative Court Procedure (Verwaltungsgerichtsordnung, VwGO), in the version of the promulgation of
19 March 1991 (Federal Law Gazette I page 686), most recently amended by Article 5 of the Act of 10 October
2013 (Federal Law Gazette I page 3786).
285 Kopp/Schenke Rn. 2; Geiger, in: Eyermann, Rn. 3; Kuntze, in: Bader/Funke-Kaiser/Kuntze/von Albedyll, Rn.
7; Lang, in: NKVwGO, Rn. 10–13; Ule" Verwaltungsprozeßrecht, § 49 III 2; Endemann," FS Zeidler, S. 409 (423);
OVG NW OVGE 33, 110, NJW 1978, 69
286 VG Frankfurt/M. NJW 2011, 2229  f.
284
75
fulfills the requirement of a ‘legitimate interest’.287 This particularly applies to third party lawyers
or legal scholars, and to cases with the potential of acquiring the status of legal precedent.288
Furthermore, legal scholars generally agree that § 100 of the Code of Administrative Court
Procedure does not necessarily inhibit the release of anonymised court verdicts and opinions to
the press, even before they become legally binding.289
QUESTION 3: DISTRIBUTION OF COURT DOCUMENTS
To what extent are the parties permitted to distribute court documents provided by another
party through compulsion, prior to the matter being called in open court? Is the position
different with regard to documents in administrative reviews?
We were not able to find legislation that addresses this specific issue, but given that court
documents contain sensitive information and that access (especially third party access) to those
documents is highly restricted and regulated, it appears that any unauthorised distribution or
publication of those documents would implicitly constitute a violation of data protection and
privacy laws and, potentially, offences under copyright law.
Given the fact that § 100 (2) states that for the electronic transmission of court documents to
those concerned, the entirety of the documents shall be equipped with an electronic signature in
accordance with section 2 of the Signature Act and safeguarded against unauthorised access,290 it
appears that German procedural law heavily restricts the distribution or publication of court
documents prior to the matter of being called in open court without the permission of both
parties.
CONCLUSION
The right of access to court documents (Recht auf Akteneinsicht) prior to the matter being called in
open court is generally restricted to the parties and their legal representation. Third parties who
are able to demonstrate a ‘legitimate interest’ (rechtliches Interesse) may be granted access to
anonymised court documents by the court without the permission of the parties.
It appears that German law regarding access to court documents at a stage prior to the court
hearing is at least as restrictive as South African law. However, this is only the case if the party
Keller NJW 2004, 413
OLG Celle NJW 1990, 2570; OVG Berlin NJW 1993, 676; Sae Rn. 24; Zi Rn. 3
289 For example, see BVerwGE 104, 105 = NJW 1997, 2694 ; Tiedemann "NVwZ 1997, 1187; Huff" NJW
1997, 2651; Redeker/v. Oertzen Rn. 2; Geiger, in: Eyermann, Rn. 3; Hirte NJW 1988, 1699
290 For a detailed description, see: Schoch/Schneider/Bier/Rudisile, VwGO § 100 Rn. 14 – 18
287
288
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concerned in an administrative review is a private person or company under private/civil law. If the
party concerned were a public body or authority, the principle of publicity and the basic right to
informational freedom/autonomy, as protected by Article 5 of the German Basic Law
(Grundgesetz), generally demand that all company records are, in principle, accessible to the public.
77
X. EUROPEAN UNION LAW
QUESTION 2: ACCESS TO COURT DOCUMENTS
To what extent are members of the public or media permitted to access court documents in
application proceedings (and particularly administrative reviews) prior to the matter being
called in open court?
General access to information under EU Law
The European Union (EU) has historically adopted a restrictive approach to the regulation of
public access to its documentation, with the practice of granting access having been shaped by
the exercise of broad institutional discretion rather than a distinctive set of legal rules.
In respect of primary EU law, the Maastricht Treaty included a Declaration on the Right of
Access to Information291 which was the first major step towards ensuring the accessibility of
documentation within EU institutions. The Declaration explains the importance of such
accessibility as follows:
The Conference considers that transparency of the decision-making process strengthens the
democratic nature of the institutions and the public confidence in the administration. The
Conference accordingly recommends that the Commission submit to the Council no later than 1993
a report on measures designed to improve public access to the information available to the
institutions.
The Declaration was put into effect by the European Commission and the Council of the EU
through the adoption, in 1993292 and 1994293 respectively, of a Code of Conduct on public access
to Commission and Council documents.294 However, two aspects in this regard must be
considered. Firstly, the Code had the legal status of an internal administrative regulation, thus
lacking legally binding powers to confer rights upon third parties. Secondly, neither the
Declaration nor the Code granted a formal right to the public to access the documentation of
EU institutions. This position was confirmed by the Court of Justice of the European Union
Annexed as Declaration 17 to the Final Act of the Treaty on European Union, signed in Maastricht on 7
February 1992 (OJ C 191, 29.7.1992)
292 93/731/EC: Council Decision of 20 December 1993 on public access to Council documents (OJ L 340,
31.12.1993, p. 43)
293 94/90/ECSC, EC, Euratom: Commission Decision of 8 February 1994 on public access to Commission
documents (OJ L 46, 18.2.1994, p. 58)
294 93/730/EC: Code of Conduct concerning public access to Council and Commission documents (OJ 1993 L 340,
p. 41)
291
78
(ECJ).295
In terms of secondary EU legislation, access to public documents is principally governed by
Regulation No 1049/2001 and complemented by other legal standards.296 The purpose of this
Regulation is to give the fullest possible effect to the right of public access to documents and to
lay down general principles on access and its limits.297 In principle, all documents of EU
institutions should be accessible to the public. The preamble states that openness enables citizens
to participate more closely in the decision-making process and guarantees that the administration
enjoys greater legitimacy and is more effective and more accountable to the citizen in a
democratic system.298
Access to ECJ documents under the current legal framework
Having remarked on the general provisions governing access to public information, we can now
consider what bearing these provisions have on the particular question of public access to
documents of the European Court of Justice. The above-mentioned Code of Conduct on public
access to Commission and Council documents primarily regulates (as the name suggests) access
to information and documentation of the Commission and the Council, and thus does not
directly concern the accessibility of the documents of ECJ itself, being a separate organ of the
EU. Moreover, the ECJ is not specifically mentioned in Regulation No 1049/2001 as being
under an obligation to give the public access to its court files.
The Lisbon Treaty provides some helpful guidance in this regard. By incorporating the general
EU principles of openness and transparency, the Treaty implies that the documentation of all
EU institutions, bodies and agencies – including the ECJ – should be accessible to the public.
Article 15 of the Treaty on the Functioning of the EU (TFEU) states:
1. In order to promote good governance and ensure the participation of civil society, the Union's
institutions, bodies, offices and agencies shall conduct their work as openly as possible.
[…]
3. Any citizen of the Union, and any natural or legal person residing or having its registered office in a
Member State, shall have a right of access to documents of the Union's institutions, bodies, offices
and agencies, whatever their medium, subject to the principles and the conditions to be defined in
C58/94 Netherlands v. Council, ECR I2169
Such as by the Directive 2003/4/EC of 28 January 2003 on public access to environmental information,
repealing Council Directive 90/313/EEC; Directive 95/46/EC of 24 October 1995 on the protection of individuals
with regard to the processing of personal data and on the free movement of such data (data protection directive);
Directive 2003/98/EC of 17 November 2003 on the re-use of public sector information.
297 Article 1 (and recital 4 of the Regulation No 1049/2001)
298 Recital 2 of the Regulation 1049/2001
295
296
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accordance with this paragraph.
However, this article contains a caveat regarding the ECJ, namely that ‘[t]he Court of Justice of
the European Union, the European Central Bank and the European Investment Bank shall be
subject to this paragraph only when exercising their administrative tasks’ (emphasis added).
Pursuant to Article 15(3) of the TFEU, the ECJ has put in place rules concerning public access
to the documents held by it in the exercise of its administrative functions.299 It must also be
considered that the general obligation imposed by Article 15(1) on all EU institutions, including
the Court, to conduct their tasks ‘as openly as possible’ still applies, which leaves open to
interpretation the question of the scope of this obligation.300
Furthermore, the entry into force of the Lisbon Treaty coincides with the entry into binding
force of the Charter of Fundamental Rights of the European Union. The right of access to
documents is a fundamental right, guaranteed by Article 42 of this Charter, which states that
‘Any citizen of the Union, and any natural or legal person residing or having its registered office
in a Member State, has a right of access to documents of the institutions, bodies, offices and
agencies of the Union, whatever their medium.’
Limitations of the access to the documents of the ECJ according to its jurisprudence
The general stance taken by the ECJ on the matter of public access to its documents might be
summarised as follows: the ECJ is to refuse access to a court document where such access would
undermine court proceedings, unless there is an overriding public interest in favour of
disclosure.301 The balancing exercise thus involves a two-step enquiry:
1.
First the Court shall examine, on the facts of the case before it, if giving access to the
requested document would undermine a court proceeding;
2.
Even if this were the conclusion, it should further investigate whether there is an overriding
interest in disclosure of the requested document.
Decision of the Court of Justice of the European Union of 11 December 2012 concerning public access to
documents held by the Court of Justice of the European Union in the exercise of its administrative functions, OJ C
38, 9.2.2013, p. 24
300 For a liberal interpretation see P Leino ‘Just a little sunshine in the rain: the 2010 case law of the European Court
of Justice on access to documents’ (2011) 48 Common Market Law Review, 1220
301 See V Naglic ‘National practices with regard to the accessibility of court documents’ (Study of the Directorate
General for Internal Policies - Policy Department C: Citizens’ Rights and Constitutional Affairs), 40
<http://www.europarl.europa.eu/document/activities/cont/201304/20130423ATT64965/20130423ATT64965E
N.pdf> accessed 25 January 2015
299
80
In its 2008 landmark ruling in the Turco case,302 the Court stressed the importance of an
institution being characterized by openness, which was held to improve the legitimacy of the
decision-making process of the institution concerned. Although this particular case did not
concern access to court documents, the arguments relied on by the Court in this judgment are in
principle transposable to cases relating to access to court files, and thus transposable to cases in
which the Court itself is the addressee of requests for access to documents.
The API case303 was such a case. It concerned access to documents in respect of the Court’s
proceedings. More specifically, the Court had to give an answer as to what extent the principles
of transparency of judicial proceedings and publicity of trials require members of the public to be
allowed access to the written submissions filed with the Court by the parties to a case. The Court
confirmed in its ruling that ‘[i]t is clear, both from the wording of the relevant provisions of the
Treaties and from the broad logic of Regulation No 1049/2001 and the objectives of the
relevant EU rules, that judicial activities are as such excluded from the scope, established by
those rules, of the right of access to documents’.304 For the Court, it was evident from the
wording of Article 255 of the Treaty Establishing the European Community (TEC) that the
Court is not subject to the obligations of transparency laid down in that provision, clarified
further by Article 15 TFEU.305
Furthermore, the Court judged it appropriate that there should be ‘a general presumption that
disclosure of the pleadings lodged by one of the institutions in court proceedings would
undermine the protection of those proceedings [...] while those proceedings remain pending’.306
Consequently, ‘the effectiveness of the exclusion of the Court of Justice from the institutions to
which the principle of transparency applies [...] would be largely frustrated’.307 However, the
Court pointed out that once a case has been closed by a decision of the Court, there are no
longer grounds for presuming that a disclosure of the pleadings would undermine the judicial
activities of the Court and the ‘general presumption’ thus no longer applies.
Practical issues regarding the accessibility of the ECJ documents
The rules governing access to case files of the EU courts are contained in the Statute of the
Joined Cases C39 & 52/05 P, Kingdom of Sweden and Maurizio Turco v. Council of the European Union
Joined cases C514/07 P, C528/067 P and C532/07 P, Sweden and other v. API and Commission
304 Joined cases C514/07 P, C528/067 P and C532/07 P, Sweden and other v. API and Commission at [79]
305 P Leino ‘Just a little sunshine in the rain: the 2010 case law of the European Court of Justice on access to
documents’ (2011) 48 Common Market Law Review, 1231
306 Joined cases C514/07 P, C528/067 P and C532/07 P, Sweden and other v. API and Commission at [94]
307 P Leino ‘Just a little sunshine in the rain: the 2010 case law of the European Court of Justice on access to
documents’ (2011) 48 Common Market Law Review, 1232
302
303
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Court of Justice, the Rules of Procedure of the three institutions, constituting the Court (i.e. the
Court of Justice, the General Court and the Civil Service Tribunal), and the Instructions to the
Registrar of each of these three institutions.308 Pursuant to Article 20 of the Protocol on the
Statute of the Court of Justice, which also applies to the General Court, written submissions are
communicated to the other parties and to the institutions whose decisions are in dispute.
Everyone may consult the register and may obtain copies or extracts on payment of a charge on
a scale fixed by the Court on a proposal by the Registrar (Article 22(1) of Rules of Procedure). In
practice, this means that a third party would file a written request for access to a specific court
file. If the parties to the proceedings agree that the requested document be transmitted to the
requestor, the access will be granted (parties to the proceedings have access to all procedural
documents related to their specific case; Art 22(2) Rules of Procedure). Third parties can also
obtain, on payment of the appropriate charge, certified copies of judgments and orders.309
In 2011, the Court launched a project named ‘eCuria”. ‘eCuria’ is an application of the CJEU
that is intended for lawyers and agents of the Member States and of the institutions, bodies,
offices and agencies of the European Union, and which allows the exchange of procedural
documents with the Registries of all of the three courts exclusively by electronic means.310 It is to
be noted that the application can be only used by the counsels of the parties to the proceedings.
Third persons who are not parties to the proceedings thus cannot use this facility.
QUESTION 3: DISTRIBUTION OF COURT DOCUMENTS
To what extent are the parties permitted to distribute court documents provided by another
party through compulsion, prior to the matter being called in open court? Is the position
different with regard to documents in administrative reviews?
We were unable to find EU law that addresses the particular issue of the permissibility of
distributing documents provided by another party through compulsion, but the restrictive
approach to the regulation of public access to ECJ documents suggests that such distribution
would not be allowed. Instead, third parties who wish to see documents disclosed to the Court
through compulsion would need to file a written request seeking access to those specific
documents as explained above.
V Naglic ‘National practices with regard to the accessibility of court documents’ (Study of the Directorate
General for Internal Policies - Policy Department C: Citizens’ Rights and Constitutional Affairs), 49-50
309 Article 22(3) Rules of Procedure
310 See Decision of the Court of Justice of 13 September 2011 on the lodging and service of procedural documents
by means of eCuria (OJ C 289/7, 1 January 2011)
308
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CONCLUSION
In conclusion it can be said that although the principles of openness and transparency are
binding upon all European Union institutions, including the ECJ, and the EU Charter of
Fundamental rights grants a corresponding right to the public access of information, access to
the ECJ documents is subject to notable restrictions. The jurisprudence of the Court tends to
give priority to the protection of the Court’s ongoing proceedings, to which a disclosure of the
Court’s documents is regularly seen as obstructive. There must be an overriding public interest in
favour of disclosure for the general presumption in favour of the protection of the Court’s
proceedings to be outweighed. Once the proceedings are closed, however, the general
presumption no longer holds.
83