A recent EAT judgment in Guardian News and Media Ltd v Rozanov highlights how the Press may be able to rely on the principle of open justice to obtain copies of tribunal documents from a party weeks after a hearing, regardless of whether their interest is the claimant’s legal claim or wider issues of public interest underlying the claim. Given modern levels of digitisation of tribunal documents, parties will struggle to convince a tribunal that the practical difficulty or cost of providing copies a few weeks after a hearing should outweigh the open justice principle.
The ex-employee’s claims concerned alleged detriment and dismissal for making whistleblowing disclosures concerning regulatory compliance and alleged money-laundering. The Guardian journalist had not been present at the hearing and four months later (and six weeks after judgment dismissing the claims) sought copies of the pleadings, skeleton arguments, witness statements and documents referred to in the judgment. The application identified that the judgment raised matters of public interest (the content of the whistleblowing disclosures) but went on to give “journalistic reasons” for needing the documents, including to better understand the matters referred to in the judgment, ensure accurate and fair reporting of the matter, to stimulate informed debate about matters of public interest and to obtain further information to assist with further enquiries (later explained as concerning the underlying subject matter including the issue of regulatory compliance and the employer’s handling of the dismissal).
Following a 2019 decision of the Supreme Court (Dring v Cape), the parties accepted that the tribunal had the power to order disclosure to non-parties to support the principle of open justice, even after the claims had been determined.
At first instance the tribunal ordered that copies of the pleadings still held by the tribunal be provided, but refused to lift the anonymity order (whereby the names of the employer’s clients had been redacted – this was not appealed) or to require the employer to provide the other documents sought. The tribunal considered that the principle of open justice was engaged only to a very limited extent, because in its view the reason for the request was to explore the money-laundering allegations and was not because the Guardian wished to report on the tribunal’s investigation of the claimant’s treatment or on the treatment of whistleblowers generally. It noted that, had the journalist been present at the hearing, he could have made any use he wished of the information revealed, but that did not mean the principle of open justice required disclosure afterwards. In its view, the weak open justice argument was outweighed by the fact that, due to the delay, the tribunal no longer had the trial bundle and the employer would have to go to disproportionate effort to identify and retrieve clean copies of the documents requested.
The EAT held that the tribunal had erred in concluding that the open justice principle was not strongly engaged as it had focused only on the Guardian’s mention of public interest issues raised by the case and had failed to consider the “journalistic reasons” given for the request. The first two journalistic reasons given (facilitating understanding of the case and fair and accurate reporting) fell squarely within the principal purposes of the open justice principle as identified in Dring, namely to enable public scrutiny of the way in which courts decide cases and to enable the public to understand how the justice system works. In this context the Press serve as the ‘eyes and ears of the public’ and it is not feasible for the Press to attend every hearing. The third and possibly fourth “journalistic reason” also had “some foundation in the wider purposes” of open justice which the Supreme Court had accepted might exist. Requiring the Guardian to establish that its purpose related to the claimant’s treatment was “far too narrow an approach to the open justice principle”. The purpose was to ensure the judgment could be properly understood, and “the public interest in the underlying subject matter of the proceedings was something that should also have weighed in favour of granting the application”.
Having concluded that the open justice principle was strongly engaged, the EAT went on to find that there was no evidence of any real practical difficulty or significant cost in providing the documents requested. With the increasing digitisation of court materials accelerated by the Coronavirus pandemic, it was implausible that clean electronic copies could not easily be obtained from computer records a few weeks after the judgment was given. Further, it was not appropriate for the employer’s solicitors to charge for the cost of legal supervision in identifying and providing the documents. The limited cost of complying with such an application should be seen as part of the costs of preparing for the hearing, as is the provision of spare witness statements and a clean copy of the bundle for the public to use at the hearing, and the latter requirement should mean that copies were available after the hearing without additional expense. Reasonable copying costs could be charged, but the EAT noted that often there will be no such costs in the digital age.
The decision suggests that, in part because of the ease of producing electronic documents, journalists who cite the appropriate reasons for requesting copy documentation are likely to receive a favourable response, as long as they do not leave the request for too long after the hearing. Argument may instead shift to whether client and other names should be redacted from the documentation provided. In this case the Guardian chose not to appeal the tribunal’s decision to maintain the anonymity order; in others, this may be the main focus of contention as the Press may argue that any report would be less likely to engage a readership if identities are kept secret. The EAT in another recent case, Frewer v Google UK Ltd, remitted an application for an anonymity order to be reconsidered, on the basis that the tribunal had failed properly to take this type of argument into account before deciding to derogate from the open justice principle.
It seems likely that open justice arguments will be a continuing concern for employers.
For further information, please contact:
Anna Henderson, Professional Support Consultant, Herbert Smith Freehills
anna.henderson@hsf.com
