The decision confirms the burden is on non-parties to justify access based on the open justice principle, but it is a relatively low threshold.
The Court of Appeal has overturned a decision of the Upper Tribunal refusing a non-party’s application for copies of the parties’ skeleton arguments and written submissions for a hearing before the Upper Tribunal. In doing so, the court addressed what it perceived as some confusion that had arisen as to how a court should approach such requests: Moss v The Upper Tribunal and others [2024] EWCA Civ 1414.
The decision considers the Supreme Court’s seminal judgment in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 (discussed here), which established that courts at all levels have an inherent jurisdiction to grant non-party access to court documents. There is no limit to the court’s discretion to grant such access and the guiding principle is the need for justice to be done in the open, so as to: (i) enable public scrutiny of court decisions; and (ii) allow the public to follow and understand court proceedings.
In the present case, the Court of Appeal rejected a suggestion that Dring established a “default position” that any document put before a court should be available to a non-party unless there are good reasons for it to be withheld. Rather, a non-party seeking access bears the burden of explaining why access is sought and how it will advance the open justice principle. Only if that threshold requirement is met will the court go on to weigh the open justice considerations against any countervailing factors against disclosure.
The judgment confirms that this is a relatively low threshold – particularly where what is sought is the skeleton arguments and submissions put to a court. Here, that threshold was surmounted – just – by a campaigner and writer who asserted that he needed access to the parties’ submissions so that he could write about the case from an informed position. The decision leaves open the question of whether his initial reason, to obtain information for similar proceedings he was involved in, would have been sufficient.
The Court of Appeal emphasised that its judgment is limited to the position at common law, rather than under specific court rules. It noted that the Civil Procedure Rules Committee (CPRC) is currently reviewing the question of public access to court documents, following an extensive public consultation, and that any resulting proposals may also need to mesh with the wider requirements of the recently established Open Justice and Transparency Board (for more detail, see this blog post). Depending on the outcome of that process, the common law position could soon be supplanted to some extent by specific rules.
Background
The appellant, Mr Moss, described himself as a campaigner and writer with a particular interest in information rights law.
His application concerned proceedings in which an individual (Mr Harron) alleged that a local authority was in contempt of court arising from a breach of its obligations to provide him with certain documents sought under the Freedom of Information Act and data protection legislation (the Harron proceedings). The Information Commissioner had been joined as a party. In those proceedings, the First-tier Tribunal initially certified the local authority as being in contempt, but the Upper Tribunal (Farbey J) set aside that decision.
A few months before the Upper Tribunal hearing in Harron, Mr Moss had applied for copies of the parties’ written submissions on the basis that, otherwise, the Information Commissioner would have an advantage over him in a similar contempt case he was pursuing against a different local authority (the Kingston case), which was to be heard by Farbey J immediately before Harron. Farbey J refused that application.
Mr Moss made a further application for the documents shortly after the Harron judgment was delivered. This time, he relied on his status as a campaigner and writer, stating that he needed copies of the skeleton arguments “to see what arguments were deployed in these cases, to enable me to write about them from an informed point of view.” The Upper Tribunal (Williams J) refused the application on various grounds, by reference to Dring.
Mr Moss appealed, arguing that the judge had misconstrued Dring. Among other things, he submitted that there was a default position that anyone could have access to skeleton arguments and written submissions unless there was a good reason for withholding them.
Decision
The Court of Appeal allowed the appeal. Lord Justice Coulson gave the lead judgment, with which Lord Justice Underhill and Lord Justice Males agreed in short concurring judgments.
Coulson LJ identified the two leading cases on the provision of documents to non-parties as Dring and the Court of Appeal’s prior decision in R v Guardian News and Media Ltd v City of Westminster Magistrates Court [2012] EWCA Civ 420 (GNM). He observed that, even if it could not be described as a tension, there were differences of emphasis in GNM and Dring which appeared to have created some confusion. He therefore set out what he considered to be the main principles to be derived from those cases (with particular regard to Dring), including:
- A non-party does not have the “right” to see every document that was put before the court in every case. Any suggestion that Dring or GNM established a “default position” to that effect is not supported by the judgments and is wrong.
- A non-party seeking access to court documents must first explain why they are sought and how granting access “will advance the open justice principle” (Dring) – which in Coulson LJ’s view simply meant explaining how access would allow the applicant to follow the case and understand the reasons for the judgment. He accepted that that is a low threshold, at least where what is being sought are skeleton arguments or written submissions which are central to an understanding of the case, and in many or most cases it will be easily cleared.
- Only where that threshold is met will the court go on to consider any countervailing factors weighing against disclosure in the particular case, and balance those against the open justice considerations. Such countervailing factors will include any risk of harm or prejudice, as well as the practicalities and proportionality of granting the request (which may be influenced by its timing).
- Dring should not be interpreted as requiring the non-party to demonstrate that there are no countervailing factors, or that granting the request would not be impracticable or disproportionate. Those will generally be matters for an objecting party to raise.
In the present case, the court held that the judge had erred in law by rejecting the stated reason for Mr Moss’s application without giving any justification for that rejection. She had simply not engaged with his stated reason – apart from pointing out that it was different from the reason given in his first application (ie to prevent him being disadvantaged in his Kingston case). That was not a relevant factor – particularly given that the original reason was no longer applicable because the Kingston case had by that time been determined.
The court therefore proceeded to reconsider Mr Moss’s application based on the material that had been before the judge. It observed that his stated reason for seeking the documents “could have been more detailed” (Coulson LJ) and was “unhelpfully sparse” (Underhill LJ). But, bearing in mind the low threshold, Mr Moss had – just – surmounted the Dring requirement to explain how granting access would advance the open justice principle.
As for countervailing factors, it was accepted that there was no risk of harm in this case, and there was no disproportionality given that the request was made only days after the judgment was handed down, when the written submissions would have been readily available.
That was sufficient to deal with the application, but the court briefly addressed Mr Moss’s other criticisms of the judgment below. The court agreed that, to the extent the judge had relied on the fact that Farbey J’s judgment set out the parties’ submissions in some detail, she was wrong to do so. That was quite irrelevant to the application. Echoing comments by Lady Hale in Dring, Coulson LJ stated:
“It would be difficult for a member of the public fully to scrutinise the judicial decision-making process in circumstances where he or she only had the judgment to go on, because it may inaccurately summarise the submission or may miss an important point…”.
Further, to the extent that the judge did so, she was wrong to take into account: Mr Moss’s failure to request the documents from the parties first; his position that the Upper Tribunal was under a duty to provide the information; and his view that the parties should not be told of his application. Although those issues to some extent reflected poorly on him, they were not relevant to the question of whether the material should be disclosed. The court did however observe that, as a matter of good practice in the Upper Tribunal relating to skeleton arguments and written submissions, non-parties should first seek the documents from the parties and, if there are objections or difficulties, should make an application on notice to the parties.
For further information, please contact:
Chris Bushell, Partner, Herbert Smith Freehills
Chris.Bushell@hsf.com
