Open justice: rule changes to increase transparency in the civil courts

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From 6 April 2019, a number of changes to the Civil Procedure Rules will come into effect with the intention of reinforcing the principle of open justice and clarifying how it operates within the civil justice system. While some of those changes simply bring the rules into line with principles established in case law, there are a number of new provisions which may have an impact on the conduct of hearings in the civil courts, including a new power to direct the compilation or sharing of a summary of a hearing with an unrepresented party.

Open justice versus right to privacy

The concept of open justice is fundamental to the English justice system and, arguably, to democracy itself. It recognises that, in a system based on the rule of law, those who are subject to the law must be able to see the law being made and applied and to scrutinise the workings of the legal process. Indeed, recent case law has confirmed that where the public has improperly been excluded from proceedings, judicial decisions taken in those circumstances may be invalid (R (on the application of O’Connor) v Aldershot Magistrates Court).

However, as the principle exists to serve the interests of justice, it may be departed from where necessary to ensure justice, including protecting a right to privacy. The question of how these competing interests should be balanced has come under some scrutiny in recent years, most notably in connection with a number of “super-injunctions” (heavily anonymised injunctions often dealing with the private lives of prominent individuals). The courts have also recently grappled with the issue in the context of determining the extent of the public’s right to access documents held on the court file (Cape v Dring).

The upcoming rule changes follow a consultation by the Ministry of Justice last summer and arise out of concerns that the existing rules do not adequately reflect the importance of open justice. In particular, the consultation recorded a concern that CPR 39, which contains general provisions regarding the conduct of court proceedings, does not properly reflect that any departure from open justice should be regarded as exceptional and only implemented to the extent necessary to ensure justice.

Private hearings and witness anonymity

Accordingly, a key amendment to CPR 39 is a small but important wording change to the provision regarding private hearings. In place of the existing provision that hearings “may be in private” if one of a number of specified criteria apply, CPR 39.2 will now confirm the general rule that hearings are to be held in public. CPR 39.2 will also specify that a hearing may not be held in private, irrespective of the parties’ consent, unless and to the extent that the court is satisfied that one of the criteria apply and, in addition, that a private hearing is necessary to secure the proper administration of justice. This reflects the position established in case law that the question of whether to hold a hearing in private is a test of necessity rather than an exercise of judicial discretion. It also corrects what the consultation described as a common mistaken belief that litigants can agree between themselves that a hearing should be in private, without an assessment by the court.

A similar approach is taken in new CPR 39.5 in respect of party and witness anonymity orders.

An updated definition of “hearing” also makes it clear that this term includes not only traditional hearings in a courtroom, but also those held in chambers and those conducted by video link or telephone. While that definition is unsurprising in itself, in the context of the open justice provisions it highlights that the right of public access applies equally to these types of hearing notwithstanding that they are, in a physical sense, more “private” than traditional courtrooms. The rule changes do not delve into the question of exactly what in practical terms that entails for the conduct of such hearings and how public access to them should be facilitated. However, importantly, the changes remove an existing provision which absolved the court of any obligation to make special arrangements for accommodating members of the public. That has now been replaced with an express requirement that the court “take reasonable steps” to ensure that all hearings are of an open and public character except when held in private. What “reasonable steps” will entail in any particular case will of course be a matter for judgment and may well be tested in due course. In particular, the combination of these two rule changes could see increased demands by the media and other interested groups for access to hearings in chambers, with potential impact on the logistics of such hearings.

The amendments also introduce a new procedure designed to address the fact that, currently, where the court decides to hear a case in private or to anonymise witnesses, media organisations and others who may have a right to be heard on the issues are not necessarily notified of such orders being made and so do not have the opportunity to make representations or apply to set aside the order. A new CPR 39.2(6) now requires (except where the judge orders otherwise) that all such orders be published on the website of the Judiciary of England and Wales. No doubt the media will keep a watchful eye on the website and it will be interesting to see whether there is a substantial increase in the number of challenges to such orders.

Informal summaries of hearings

The other substantive new procedure introduced by the changes concerns the recording and transcription of proceedings.

The consultation document noted concerns about delays commonly encountered in obtaining transcripts of hearings, and noted the problems that this poses particularly for unrepresented parties in considering and taking advice on the outcome, including in relation to possible appeals.

This concern is sought to be addressed by a new CPR 39.9(5), which provides:

“At any hearing, whether in public or in private, the judge may give appropriate directions to assist a party, in particular one who is or has been or may become unrepresented, for the compilation and sharing of any note or other informal record of the proceedings made by another party or by the court.”

This appears to be a fairly novel concept, at least in the Business and Property Courts, and it is not at all clear how it will operate. Apart from possible concerns about the additional burden placed on the represented party, the more fundamental issue is that it is unclear what exactly is envisaged by a “note or other informal record of the proceedings”. The foreword to the consultation paper paraphrased this as a direction “that parties share their notes with the other side”. The rule itself, though, suggests that the note would be one compiled for this specific purpose. That, of course, is how any such provision would have to operate in order to protect any privileged observations or material in the represented party’s legal team’s own notes taken during the hearing. But there is no detail as to the content or form of the envisaged document. The description of it as “a record of the proceedings” could entail anything from merely a record of the outcome of the hearing (that is, any orders made), to details of the witnesses called/examined and documents admitted and so on, through to a detailed summary of the substantive evidence given and submissions made on each issue.

If the note was limited to recording orders made, it is difficult to see how this would add to the existing procedures for the drafting of the formal order (which would normally be undertaken by the represented party’s solicitors where the opponent was a litigant in person). If it extended to summarising the substantive evidence and submissions, that would naturally give rise to questions regarding the represented party’s duty to ensure the document was factually accurate and neutral, and what the repercussions would be for failure to do so. While the consultation elsewhere referred to such a document as “an agreed note”, there is no indication in the rule itself of there being any requirement for the parties to seek to reach agreement on it.

The proposed use and status of such documents is similarly unclear. The executive summary to the consultation suggested that such an informal note would be “[i]nstead of a verbatim… transcript” and the foreword stated: “In some cases these shared notes may stand in place of a transcript”. However, this is not reflected anywhere in the new rules and the consultation itself stated that the purpose of the informal note would be to assist the parties “while awaiting the approved transcript”. A suggestion in the consultation questions that such note could potentially have some formal status in the context of an appeal adds to the concern about the lack of clarity as to the form and content of such notes.

Many of these uncertainties would of course need to be addressed by the trial judge when giving any such direction, and the scope of the power being given to the judge may need to be tested. But it would clearly have been preferable for the introduction of such a potentially substantial additional step in the trial process to include more specificity and guidance, for both judges and parties. Or for the solution to the transcript problem to instead be focused on efforts to improve the timeliness of transcripts, rather than placing additional burdens upon litigants.

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