Are Court Documents Accessible by the Public?
Introduction
Litigants are often nervous that the documents that need to use in making (or defending) a claim will contain data, statements, or information, that they do not want accessible by the public. Businesses, in particular, might have to provide commercially sensitive data (such as accounts, or profit margins) or make potentially reputationally or commercially damaging admissions.
This article explains the rules, processes, and limitations for members of the public accessing court documents, as well as how parties can protect their sensitive information.
What Are Court Documents?
Court documents are the materials sent to the court for, or created during, the course of legal proceedings. Examples include:
statements of case (e.g., claim forms, defences, and replies);
evidence submitted in support of claims or defences, such as witness statements or documents used to support those statements'; and
oders and judgments issued by the court.
Some of these documents are more readily accessible to the public than others.
Open Justice and Public Access
The principle of open justice underpins the English legal system. It allows for transparency in judicial proceedings, ensuring that the public can scrutinize the functioning of the courts. This means that the courts are willing to give access to certain court documents, especially those integral to understanding acase.
However, open justice is balanced against other considerations, such as privacy, confidentiality, and the efficient administration of justice. These factors can impose significant restrictions in specific circumstances.
A helpful rule of thumb is that simply by a party submitting and relying upon a document in litigation, the document does not become readily available to the general public.
The Court’s Approach
The Supreme Court has made clear that courts at all levels have an inherent jurisdiction to grant the public access to court documents. The court has a broad discretion about how it exercises that jurisdiction.
There is no limit to the court's discretion to grant such access, but the guiding principle is the need for open justice so that the public can scrutinise the work of the courts, and understand proceedings.
The Court of Appeal has recently made clear that is is not the case that - by default - a document put before a court should be available to a non-party unless there are good reasons for it to be kept private. Instead, a non-party seeking access bears the burden of explaining why access is sought, and how such access will advance the open justice principle.
Only if that threshold requirement is met will the court go on to consider any reasons for keeping the document(s) private. However, the court has confirmed that it is a low threshold (and, therefore, is one that is likely to be relatively easy to meet).
Access Rules for the Public
The rules governing non-party (i.e. public) access to court documents are primarily found in the Civil Procedure Rules (CPR), particularly CPR 5.4C and CPR 5.4D. These rules outline what documents the public can obtain and the conditions under which access is granted.
The Civil Procedure Rules Committee (CPRC) is currently reviewing the topic of public access to court documents, following an extensive public consultation. Specific rules may, therefore, be forthcoming which supplement or differ from what is described below.
Documents Available Without the Court’s Permission
The public can access the following documents without needing to ask for, and obtain, the court's permission:
statements of case: these include the claim form, particulars of claim, defence, counterclaim and so on. These documents provide a summary of each party's position, but will not ordinarily contain (or attach) evidence in support;
judgments and orders made in public: these are decisions issued by the court during or after hearings. They routinely summarise, quote from, and refer to, evidence but they do not contain or attach the evidence itself.
For these documents to be accessible:
they must have been filed with the court after October 2, 2006; and
at least one defendant must have acknowledged service or filed a defence, or the claim must have reached a hearing stage or had judgment entered.
Documents Only Available With the Court’s Permission
For other types of documents, such as witness statements or primary evidence, the public must seek the court's permission. The application for permission involves demonstrating why access is necessary and how it aligns with the principles of open justice.
Protecting Sensitive Information
Parties to a case can take steps to restrict access to sensitive documents. These steps include:
Applications to Restrict Access
Under CPR 5.4C, parties can apply for a pre-emptive order to limit the release of documents. Reasons for seeking such an order may include:
protecting commercially sensitive information.
safeguarding personal data or private details.
avoiding misuse of disclosed information.
The court will weigh the interests of open justice against the potential harm caused by unrestricted access.
Redaction
Sensitive parts of documents can be redacted before being made available. Redaction ensures that only relevant information is disclosed while safeguarding confidential or private details.
Practical Steps for the Public Seeking Access
If you are a member of the public or a journalist seeking access to court documents, the process generally involves:
identifying the documents: determine which documents you need and whether they require permission to access;
making a request: submit a formal request to the court, specifying the documents sought. Some courts may accept informal requests for certain documents; and
applying for permission (if required): for restricted documents, file an application with the court, explaining your reasons and addressing any privacy or confidentiality concerns.
The Role of the Court
The court has a wide discretion to grant or deny access when permission is sought. There are no fixed and firm rules that it must following in exercising that discretion. Instead, the court considers broad principles including:
the importance of transparency and public scrutiny;
the potential impact on the parties involved; and
any overriding legal or practical concerns, such as national security or the risk of prejudice to ongoing proceedings.
Conclusion
Access to court documents by the general public is an imporant feature of the English legal system, because it promotes transparency and accountability. Justice does not, generally, play out behind closed doors and this extends to certain documents relied upon tin the pursuit and administration of justic.
However, that access is carefully regulated to balance the competing interests of open justice, privacy, and the effective functioning of the courts.
If you wish to gain access to court documents, or prevent such access, contact Hamshaw today.