Open justice isn’t only for deserving cases

With impeccable courtesy and a careful explanation of his reasons, Mr Justice Birss ejected me from his court in the Rolls Building the other day. He was hearing an IP case in which one party's evidence, involving details of a commercial product, was subject to a confidentiality club agreement. Fair enough; I wasn't a member of the club. Apart from anything else, I was grateful for the chance to stretch my legs and look in on a jucier case next door. 

I mention the incident to show that even journalists can cope with the occasional need for secrecy even in commercial court proceedings. But in truth most hearings are effectively conducted in private anyway. The disappearance of the local newspaper court reporter is well known. But that's only part of the story - public galleries nowadays don't even seem to attract the wild-haired old blokes in raincoats who used to be such a fixture. Perhaps the security puts them off. 

Ruling in Cape Intermedia Holdings v Dring this week, the president of the Supreme Court, Lady Hale, pointed to another reason for low attendance: the near impossibility of following what is going on. 'If I may draw your lordship's attention to bundle 17 section 5,' isn't much help to anyone who doesn't have the bundle. Of course there are very good reasons why we have moved on from what Lady Hale insists on calling 'the olden days': it's hard to imagine a case like HP v Lynch, currently running at the Rolls Building (300 bundles and counting) being conducted entirely in spoken words. 

But, as Lord Woolf observed in Barings v Coopers & Lybrand (oh, memories!): 'Practices adopted by the courts and parties to ensure the efficient resolution of litigation should not be allowed to adversely affect the ability of the public to know what is happening in the course of proceedings.'

That was back in 2000. In Cape Lady Hale quotes Woolf to rule in favour of allowing a pressure group access to written materials placed before the court in a case to which it was not a party. Lady Hale's ruling seems to have been widely welcomed in the media, especially her suggestion that access to documents should not be limited to those from which the judge in the case has specifically been asked to read. She makes the point that if access is limited to what the judge has actually read, 'then the less conscientious the judge, the less transparent is his or her decision'.

Lawyers appear to be less sanguine about the ruling, rightly raising questions about the cost and practicality of being expected to deliver up materials for an indefinite period in the future. Hale acknowledges the issue by pointing out that: 'We have heard no argument on the extent of any continuing obligation of the parties to co-operate with the court in furthering the open justice principle once the proceedings are over.' She concludes: ''We would urge the bodies responsible... to give consideration to the questions of principle and practice raised by this case.'

This consideration should take into account two points. First, arguments about the cost and practicality are predicated on the assumption that court materials are essentially paper documents, even if generated electronically and transmitted through the much-vaunted e-filing system. There is no reason why this should continue - indeed there is every reason, if London is to maintain its edge as a centre of commercial dispute resolution, to go entirely digital. Going digital would allow anyone with an interest in the case to view public documents lodged with the court. It would also enable the creation of a court data store, where materials could be archived for future reference, subject of course to redactions as required by law and judicial direction. 

Which leads us to the second point. Hale's judgment is not quite as in favour of open justice as some commentators seem to think. She interprets the law as requiring an explanation by the party seeking access of why they want access, and how granting such access will 'advance the open justice principle'.

I believe that this is out of kilter with current thinking on access to public information. Assuming that downloads from the courts data store come either free or at a tiny marginal cost, no explanation should be required. Some downloaders will certainly be less worthy than others: we can all think of campaign groups that might make mischief with court materials, while others will scent commercial opportunities in mining a new trove of 'big data'. 

We should welcome both outcomes. In Lady Hale's olden days, courts were as open to the blokes in raincoats as they were to, say, Joshua Rozenberg. Open court data should follow the same principle.