Open justice in the employment tribunal

by Laurie Anstis on May 7, 2012

In R (on the application of Guardian News and Media Limited) v City of Westminster Magistrates’ Court the Court of Appeal ruled in favour of an application by the Guardian newspaper for access to documents (including affidavits, witness statements, correspondence and skeleton arguments) referred to by a district judge during the course of an extradition hearing.

The general principle

The district judge who heard the original application refused to allow the application for access to the documents, on the basis that:

– all the relevant issues had been referred to orally in open court,
– there was no specific power in the Criminal Procedure Rules for such disclosures to be made, and
– there would be considerable administrative problems if such disclosures were to be allowed – how would any application be made? Who would provide any copies (it would be costly for the court to provide copies)? What about the delay caused by such applications?

The Administrative Court also rejected the application, on the basis that disclosure of such documents was contrary to previous authority, not provided for in the rules, and the Freedom of Information Act 2000 had carved out specific exclusion for court documents.

The Court of Appeal, in allowing the application, took the opportunity to make a bold statement of principle about the importance of open justice, and what that might mean in an age when much of the evidence and argument will be given on paper, rather than heard orally.

Delivering the judgment of the court, Toulson LJ said (para 85):

“In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong.”

In the employment tribunal

What does this mean in the employment tribunal? Well, there can be no doubt that this development of the open justice principle was intended to apply to the employment tribunal. At paragraph 70, Toulson LJ said:

“Broadly speaking, the requirements of open justice apply to all tribunals exercising the judicial power of the state.” 

This is particularly significant given the recent rule change making it the norm that witness statements should be “taken as read” – that is, being read privately by the tribunal, rather than read out by the witness in open court.

What is covered?

The basic principle seems to cover “documents … placed before a judge and referred to in the course of proceedings”. This will clearly cover witness statements and any skeleton arguments or written submissions.

Perhaps more controversially it seems also to apply to documents contained in the tribunal bundle, at least where they are referred to in the course of evidence or submissions. Historically documents in the tribunal bundle have not been available to the public or press, even where an individual’s witness evidence is being given orally in open court.

Most bundles will contain far more documents than actually end up being referred to in tribunal, and I don’t see that this principle extends to the whole bundle, rather than just those documents which are referred to.

The application

Despite the importance of the principle, it is apparent that a specific application is necessary in order to be granted access to the relevant documents, and that the parties to the case should be allowed to make representations as to whether access should be allowed. The starting point for such an application appears to be set out at para 77 of the judgment by Toulson LJ:

“Unless some strong contrary argument can be made out, the courts should assist rather than impede such an exercise.”

But it is clear that the right to access documents is not absolute. At para 97 Hooper LJ says that:

“Any power to release material to third parties would be subject to restrictions such as PII [Public Interest Immunity] and the Article 8 rights of witnesses, victims and defendants.”

As to the considerations that should apply, at para 85 Toulson LJ said:

“I do not think that it is sensible or practical to look for a standard formula for determining how strong the grounds of opposition need to be in order to outweigh the merits of the application. The court has to carry out a proportionality exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others.”

The Court of Appeal make a number of references to the “serious journalistic purposes” of the Guardian, and it appears that the purposes for which the disclosure is sought will be something to be taken into account – although there remains a question about what might happen if access to the documents were granted for one purpose, but ended up being used for a different purpose. What if, for instance, the access granted to the Guardian ended up being used by one of its columnists to poke fun at the court process?

Practical points

There remains a question about the nature of the access that should be granted if any such application succeeds. In the Court of Appeal judgment the right is usually referred to as a right to “access” documents. However, the Guardian’s application was for copies of documents, which they could take away.

At para 84 Toulson LJ clearly refers, in the context of the Criminal Procedure Rules, to a defined procedure for the applicant to pay a prescribed fee to the court for provision of copies of documents. There isn’t any similar provision for payment of fees for copies of documents in the tribunal rules, and anything which required the tribunal to provide photocopies would be likely to be objected to strongly by the tribunals’ administration.

In the absence of any specific provision, it seems likely that in the tribunal it would be considered a right to access – that is, view – documents, rather than a right to be given copies.