The Law Society’s landmark legal challenge to the High Court has ended with a restrictive change in the rules – but more court documents than ever before are now available to journalists.
The society, the professional body for solicitors, was angered by a judicial decision allowing court documents to be available retrospectively, and won a last minute ex-parte injunction banning the Court Service from applying the new rule, which was due to take effect from 2 October.
A group representing all the major media players in the UK joined forces to challenge the injunction, and days before a full hearing, the Department for Constitutional Affairs, which runs the Court Service, caved in.
This meant that the new rule allowing access to court documents will not apply retrospectively, but will apply to all new cases started from 2 October, and to all statements made in cases from 2 October, even if they have been started earlier. Previously, most details of court actions have been confidential to those not involved in the dispute.
The rule change has been agreed by the Rules Committee and now has to become a statutory instrument approved by Parliament, before taking effect from 18 December.
The Law Society has claimed its action as a victory protecting claimants in court actions from intrusive publicity from the wicked press – but the reality is quite different.
The past year has been difficult for journalists covering the High Court, since a rule change in October 2005 produced a draconian ban on access to anything but a simple claim form, with very limited information.
The Rules Committee, which made the change, had not drafted the wording of the 2005 rule properly, and it produced an unintended effect removing access to particulars of claim as a right. It took a year of twists and turns for the new rule, restoring the old position and allowing access to a whole range of other documents never before allowed, to come into force.
But the Law Society stepped in at the last moment, arguing the change, which was to apply retrospectively, was unfair to claimants who had expected confidentiality. This was a fallacious argument, as litigants who chose to engage in legal action in UK courts know that our courts are public, and that some documents are also public.
The DCA was forced into a corner, especially as it became clear that the Law Society had not been consulted on the proposed changes as it should have been. Consultees, of whom I am one, are invited to comment on changes to the rules and the Law Society, after initially claiming it had not commented, then realised it did not know of the rule change, and quickly went to court, winning an injunction.
The Law Society, of course, was in the peculiar position of having reported several times on the proposed changes in its journal, the Law Society Gazette, and of knowing that court rules change twice a year. But it argued successfully that it had not been consulted on this particular rule change.
“The Law Society’s action was ludicrous and flew in the face of open justice and open information,” raged one senior member of the judiciary. “It was ridiculous that cases, such as those involving politicians, police officers, or government departments, would be hidden in a cupboard somewhere rather than facing the light of day, which they would inevitably do in open court.”
Media lawyer Mark Stephens argued that the court action was a scandalous waste of money.
Since October, journalists, and others not directly involved in court actions, may apply for a range of documents from the High Court, including all statements of case. This encompasses particulars of claim, defences, counterclaims, replies to a counterclaim, and other documents which are not specified. During the past year, it was necessary to win permission from a procedural judge called a master, or from a judge, merely to get a copy of a claim form, although these had been widely available for the past 40 years without judicial permission.
The Rules Committee, mindful of the court’s aim of transparent justice, took a liberal option by allowing all statements of case to be available as of right by journalists and non parties.
But as any court journalist will tell you, nothing in the court system is ever simple, and those claimants desiring to keep their cases confidential are entitled to apply to have them heard in private, and for court papers to be shrouded in secrecy. There are, of course, some cases which should be kept confidential; but these are few, and it is to be hoped that judges and masters will not grant privacy without good cause.
“Publicity is the very soul of justice,” said Lord Diplock in 1983. “It is the keenest spur to exertion, and the surest of all guards against improbityâ€¦ simple assertions of confidentiality and of the damage that will be done by publication, even if supported by both parties, should not prevail. The court will require specific reasons why a party would be damaged by the publication of a document.”