How the press combined to fight court restrictions

A draconian measure restricting access to court documents is set to be overturned after an energetic campaign by journalists, newspapers and broadcasters.

Documents with details of upcoming civil cases, which have been available for dozens of years, were restricted by the Civil Procedure Rule Committee, which decides the rules of the High Court.

This meant that particulars of claim, with details of cases, were no longer publicly available, unless one paid a £50 fee and won the consent of a procedural judge (called a Master).

But now the Rule Committee has decided not only to change the rule, opening up the information, but to make it more liberal, so that all particulars of claim, and all defences, will became publicly available from 1 October. The flow of information coming from the High Court should now increase.

The change has to be ratified by the Attorney General and passed through Parliament before coming into effect this autumn. Hopefully, this is just a rubber-stamping exercise.

Media organisations were incensed by the new procedures in October 2005, which were passed without any consultation and with only several days’ notice. At a stroke, access to the particulars of a claim were restricted, which made it impossible to know what a case was about.

In contrast, the courts have thrown open the earlier stages of cases, and now case management conferences are open to the public. Generally, these are so dull that no one bothers to report them, but the increased opening up of the courts is to be welcomed.

Associated Newspapers, News International and Trinity Mirror instructed solicitors to challenge the new rule. The Newspaper Society, which represents regional newspapers, and the Telegraph, became involved.

Alastair Brett, chairman of the Fleet Street Lawyers’ Society, took a leading role. But m’learned friend decided the Rule Committee was entitled to change the rules if it wanted to, and that the only way forward was by persuasion rather than coercion.

Individual journalists began campaigning, and I was joined by Stephen Rowe of Estates Gazette, my colleague Rob Nash, who works on my specialist court document reporting service, Roger Pearson, who runs his own news agency, and Megan Murphy of Bloomberg.

Stephen and I were invited to the chief chancery master’s office, where he listened to our case. After fierce and thorough questioning, he decided that he would support a further change in the rules to undo the previous change made in October, working on the theory that if the system had worked well for dozens of years, there was no reason for it to have changed.

A foolish restriction Some masters, who should have the respect of the wider press, realised that the restriction was foolish and unnecessary, and readily gave permission for the particulars, and dispensed with the need for a £50 fee and application. This made life much easier, but applying for documents that had previously been available automatically still took time, slowed down reporting of events, and clogged up the courts.

Other masters also took a strong view. One of them decided to make an impromptu ruling on some of my requests, declining them by saying, memorably, that the Rule Committee must have changed the rules for a reason, and that he would not give con-

sent for the documents. But he very kindly gave me permission to appeal against his decision.

One of the problems for me was that this wasn’t just an intellectual exercise about the precise wording of court rules and the morality of journalists reporting court cases — it was my livelihood.

Luckily, the Rule Committee took a robust view after realising the wording error that had led to the restrictions, and changed the rule without even voting on it, as the support for change was overwhelming. Just two people were against liberalising the way court information is provided.

Part of the problem, I’m told, is that many of the judiciary regard the press as vermin, and see it as their duty to make getting court papers as hard as possible.

But others regard that as the attitude of antediluvian relics and are keen to move the court system forward into this brave new century.

It’s been a bizarre battle, as the court’s new watchwords are transparency and openness. The rules introduced last year flew in the face of this, and it was obvious that they should be amended. It has, however, taken a year, and during that year it has been extremely difficult to get hold of particulars of claim.

Officials at the Department for Constitutional Affairs suggested at first that it would merely be a formality to obtain the documents, and that masters would probably just give permission.

But most masters actually refused to give permission for the documents, without necessarily giving a reason.

Hopefully the new rule will not mistakenly incorporate any unintended changes, and will be written clearly so that we can carry on doing our jobs of reporting the courts as fully and accurately as possible.

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