At a November hearing, lawyers for the Ministry of Justice (“MoJ”) are reported to have told journalists that they could not provide copies of skeleton arguments relating to the High Court case involving a Muslim extremist jailed for life after being convicted of the murder of solider Lee Rigby. The reporters raised the issue with judge, Mr Justice Langstaff, who apparently did not order the lawyers to provide the documents.
This is a disappointing approach, as four years ago the UK’s most senior judge, Lord Neuberger, said “if proceedings are in public then… there should be made available all the documents which are in court – (journalists) should have them“. He also stated “if we believe in open justice then we should be doing something to ensure that with reason, copies of documents, such as skeletons, are available“.
He added “Journalists covering cases could not always get the full picture without access to documents, such as skeleton arguments. If courts are sitting in public then journalists should have access to documents before the court.”
Lord Neuberger’s comments apply just as much in civil cases as to criminal trials.
And although the civil Courts are not regularly frequented by reporters, every so often, a really newsworthy story can be found in the County Court or the High Court.
Journalists will be pleased to know that they may be able to obtain the formal “statements of case” from the Court files without having to obtain prior permission and without having to give notice to any of the parties. The procedure to follow is found in the Civil Procedure Rules (“CPR”). It’s all fairly straightforward, though as ever, a fee has to be paid!
Unfortunately, this procedure does not apply to the following proceedings in England and Wales:
- Insolvency Proceedings;
- The Employment Tribunal or the Employment Appeals Tribunal; or
- The Supreme Court.
In order to request copies of documents from the Court, the individual must either file an application notice (if the Court’s permission is required, as explained above) or file a written request (if the Court’s permission is not required) and also pay the prescribed fee plus copying fees.
In the application or written request, the documents sought must be identified with reasonable precision; however, this does not prohibit someone from making a request for a ‘class of documents’.
However, it must be noted that the parties are at liberty to apply for a pre-emptive order restricting the release of Court documents to non-parties. All is not lost in these circumstances or where the hearing was held in private. The Court’s test will be whether it is in the interests of justice, that documents are provided. The Court will consider factors such as (1) whether there is a distinct and crucial public interest in scrutinising the decision-making process and (2) in knowing the facts on which decisions are made. However, if a restriction is in place, the procedure under CPR 5.4C(6) should be followed, whereby the application should be made on notice, to the party who made the original application to restrict access.
With the relatively recent introduction of CE-Filing, non-parties are now also able to inspect the electronic record of proceedings and to determine whether any documents are publically accessible, by visiting one of the public kiosks in the Rolls Building.
Going back to skeleton arguments, Bar Council guidance informs barristers that, providing skeleton arguments will in most cases, not pose a problem. They must, however, be sure that disclosure will not breach their client’s confidentiality or breach any statutory provision (for example the anonymity of the victims of sexual offences) or specific court order. Without more explicit encouragement from the Courts, lawyers will no doubt continue to take a cautious approach.