JOURNALIST ALLOWED TO VIEW DOCUMENTS REFERRED TO IN COURT JUDGMENT SIX YEARS AGO: CPR 5.4C CONSIDERED
In Goodley v The Hut Group Ltd [2021] EWHC 1193 (Comm) Mr Justice Calver allowed a journalist’s application for sight of documents referred to in open court. The judgment contains some important observations in relation to CPR 5.4C.
THE CASE
The applicant, a journalist, made an application for an order that the claimant in the case that the claimant disclose a report referred to in the judgment in The Hut Group Limited v Nobahar-Cookson and Barclays Private Bank and Trust Limited [2014] EWHC 3842.
The claimant in that action resisted the application.
THE RULES
“(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) …
(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.”
GUIDANCE FROM LADY HALE
The judge considered the guidance given by the Supreme Court:
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This application does not concern a request for the provision of a document from the records of the court; rather it is an application to the court for it to exercise its inherent jurisdiction to order the provision of a document from a party to the original action in which the document was placed before the court.
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In Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 at [34] and [41], Lady Hale explained that the open justice principle applied to all courts and tribunals, and that aside from CPR 5.4C and except in so far as limited by statute or rules, the court has an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court. At [32] she stated as follows:
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“developments since FAI[3] also meant that it was within the inherent jurisdiction to allow access to “documents read or treated as read in open court” (para 107). This should be limited to documents which are read out in open court; documents which the judge is invited to read in open court; documents which the judge is specifically invited to read outside court; and documents which it is clear or stated that the judge has read (para 108).”
“42. The principal purposes of the open justice principle are two-fold and there may well be others. The first is to enable public scrutiny of the way in which courts decide cases—to hold the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly…
43. But the second goes beyond the policing of individual courts and judges. It is to enable the public to understand how the justice system works and why decisions are taken. For this they have to be in a position to understand the issues and the evidence adduced in support of the parties’ cases. In the olden days, as has often been said, the general practice was that all the argument and the evidence was placed before the court orally. Documents would be read out. The modern practice is quite different. Much more of the argument and evidence is reduced into writing before the hearing takes place. Often, documents are not read out. It is difficult, if not impossible, in many cases, especially complicated civil cases, to know what is going on unless you have access to the written material.” (emphasis added)
“44. It was held in Guardian News and Media [2013] QB 618 that the default position is that the public should be allowed access, not only to the parties’ written submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing. It follows that it should not be limited to those which the judge has been asked to read or has said that he has read. One object of the exercise is to enable the observer to relate what the judge has done or decided to the material which was before him….”
“45. However, although the court has the power to allow access, the applicant has no right to be granted it (save to the extent that the rules grant such a right). It is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle. In this respect it may well be that the media are better placed than others to demonstrate a good reason for seeking access. But there are others who may be able to show a legitimate interest in doing so. As was said in both Kennedy [2015] AC 455, at para 113, and A v BBC [2015] AC 588, at para 41, the court has to carry out a fact-specific balancing exercise. On the one hand will be “the purpose of the open justice principle” and “the potential value of the information in question in advancing that purpose”.
46. On the other hand will be “any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others”. There may be very good reasons for denying access. The most obvious ones are national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality. In civil cases, a party may be compelled to disclose documents to the other side which remain confidential unless and until they are deployed for the purpose of the proceedings. But even then there may be good reasons for preserving their confidentiality, for example, in a patent case.” (emphasis added)
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That stated, Lady Hale also emphasised at [38], citing Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2013] QB 618 at [85] that:
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“[i]n a case where documents have been placed before a judge and referred to in the course of proceedings … the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose the case for allowing it will be particularly strong“. In evaluating the grounds for opposing access, the court would have to carry out a fact-specific proportionality exercise. “Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others” (para 85).” (emphasis added)
THE DECISION IN THIS CASE
The judge decided that the facts of this case militated in favour of disclosure being ordered.
Discussion
Before turning to the substantive issues raised by this application, I must address one preliminary issue. That is to emphasise that whenever a contested application arises for a non-party to proceedings to be granted access to documents on the court file or which have been referred to in open court, the default position is that there will need to be an oral hearing of the application. The complexity of the balancing exercise that must be conducted by the court means that such an application will not be suitable to be determined on paper, as the parties had proposed in this case (which Moulder J rightly refused to sanction).
In my judgment, the starting point must be that, since the Project Hydrogen report was placed before Mr. Justice Blair and he specifically referred to it as a central finding in his judgment, the default position is that access should be permitted to it on the open justice principle; and where access is sought for a proper journalistic purpose the case for allowing it will be particularly strong.
However, it is important to appreciate that although the court has the power to allow access, the Applicant has no right to be granted it. It is for the Applicant seeking access to explain why he seeks it and how granting him access will advance the open justice principle. In evaluating THG’s grounds for opposing access, this court has to carry out a fact-specific proportionality exercise. In carrying out that exercise in the instant case, central to the court’s evaluation will be (i) on the one hand the purpose of the open justice principle and the potential value of the material in advancing that purpose and (ii) on the other hand any risk of harm which access to the documents may cause to the legitimate interests of others.
As explained above, whilst the purposes of the open justice principle are at least twofold, as Lady Hale stated in Dring, there may be others. I do not consider, therefore, that every case has to be artificially fitted into the straightjacket of one of the two purposes of that principle identified by Lady Hale, namely (i) to enable public scrutiny of the way in which courts decide cases—to hold the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly—and (ii) to enable the public to understand how the justice system works and why decisions are taken.
In the present case the Applicant seeks to report about the trial and contextualise it in the Claimant’s recent flotation on the London Stock Exchange. He says that accurate reporting requires him to see and understand the primary basis for Blair J’s findings about the nature and extent of the fraud on the last occasion when the Claimant was seeking flotation on the London Stock Exchange. On any view, this is a serious journalistic issue of public interest.
In my judgment, the direction of travel of cases such as Chan, NAB and Guardian News and Media leads to the conclusion that the court has the power, as part of the open justice principle, to allow a journalist access to a document which has been referred to in open court and which he/she requests for a proper journalistic purpose, unless affording access to the document is outweighed by the risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others.
Very often, a proper journalistic purpose will fall within one of Lady Hale’s two principal purposes of the open justice principle. But even if it does not, in my judgment the open justice principle will nonetheless typically be advanced by disclosure to a journalist in pursuit of a serious journalistic story of a document referred to in open court which may be germane to that story. It will then be for the respondent to demonstrate that disclosure of the document may cause harm to the judicial process or the legitimate interests of others.
In fact, in my judgment part, at least, of Mr. Goodley’s broad aim in seeking disclosure of the Project Hydrogen report is indeed to scrutinise and publicise the way in which Blair J reached his decision (in the context of the public interest topic with which he is presently concerned), and to understand more fully the background as to why he decided the case in the way that he did. In this way, therefore, I would find (if necessary) that Mr. Goodley’s application broadly meets the requirements of both of Lady Hale’s two principal purposes of the open justice principal. In short, Mr. Goodley wishes to gain a deeper understanding of the findings of Blair J so as to report accurately on issues of public interest arising out of the further recent flotation of THG, in particular how such companies deal with the discovery of fraud ahead of a planned flotation.
But regardless of whether the application can be said to fall neatly within one or both of Lady Hale’s two principal purposes, I consider that to order disclosure of this report, which was specifically relied upon by Blair J in his public judgment, for this proper journalistic purpose, does indeed advance the open justice principle.
This conclusion is not undermined by the fact that the Blair judgment is now some 6 ½ years old, as its subject matter (the attempted flotation at that time of THG in the context of an accounting fraud) has become a matter of current public interest by reason of recent events (the current flotation of THG in the context of corporate governance concerns of such companies upon flotation). The underlying issues with which the judgment deals are not stale; they have once again become of contemporary interest.
My conclusion is fortified in this case by reason of the fact that THG does not suggest that there is any risk of harm which disclosure of this report may cause to the maintenance of an effective judicial process or to its own legitimate interests. It follows that there is nothing to weigh on the other side of the scales, by way of harm, to balance against the value of the report in advancing the open justice principle.