Supreme Court Calls For Courts Rules Bodies To Consider Importance of Open Justice

The President of the Supreme Court has urged courts rules bodies to consider the “importance and universality of the principles of open justice” when framing the rules for courts in the United Kingdom.

Delivering the judgment in the case Cape Intermediate Holdings Ltd v Dring, for and on behalf of Asbestos Victims Support Groups Forum UK, Lady Hale said the principle of open justice “applies to all courts and tribunals exercising the judicial power of the state.”

She added: “We would urge the bodies responsible for framing the court rules in each part of the United Kingdom to give consideration to the questions of principle and practice raised by this case. About the importance and universality of the principles of open justice there can be no argument.”

The Media Lawyers Association had intervened in the Supreme Court case in which the Asbestos Victims Support Groups Forum sought access to a wide range of documents presented during a High Court trial at which Cape Intermediate Holdings Ltd, an asbestos firm, had been sued by insurers.

The MLA, which counts the News Media Association among its members, stressed that media access to court documents is “essential” as the way most members of the public are able to scrutinise court proceedings is through media reporting.

Delivering the judgment, Lady Hale said: The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question.

“The extent of any access permitted by the court’s rules is not determinative (save to the extent that they may contain a valid prohibition). It is not correct to talk in terms of limits to the court’s jurisdiction when what is in fact in question is how that jurisdiction should be exercised in the particular case.

Lady Hale added: “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.

“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.”