The Supreme Court delivered a landmark judgment on Monday for journalists and privacy in court proceedings. In fact, anyone involved in litigation should consider which documents may be requested by non-parties, and how they would explain what’s in them. In Cape Intermediate Holdings Ltd v Graham Dring, Lady Hale said: “it is, in short, about the extent and the operation of the principle of open justice”, no less.
Cape is a company involved in the making of asbestos. It was sued for negligence by insurers: several employees had been exposed to asbestos at work due to products manufactured by Cape. After settlement, the Asbestos Victims Support Group, which was not a party to the litigation, requested all the documents used at or disclosed for the trial. They thought it would contain valuable information about the industry. The request was granted, but Cape appealed, leaving the Courts with the question: what documents can you access as a third party?
The Media Lawyers Association intervened in the appeal to the Supreme Court – another good indication of the stakes in the case. Court documents are part and parcel of a journalist’s toolkit. In fact, much of the relevant case law was fought either by or on the application of news outlets. The Independent News and Media Limited case is one of those rare instances in which the Telegraph and the Guardian are on the same side: journalists all need access to sources, and court records can be very valuable in the right circumstances. If your case is likely to attract their attention, you need a strategic communications plan, an over-arching narrative into which your documents fit. In isolation, a trial bundle may not present your case as you might like.
The judgment says that documents which have been placed before the court should be available to the public – whether a judge has read them or not. However, the access is not automatic, and the request must be for a good reason. The judgment specifically refers to the media as being in a good position to demonstrate a legitimate purpose for requesting documents – journalists had a good day in court. However, Lady Hale also stressed that these requests should ideally be made during trial, and this may affect the practicability of an order. A request to access court documents remains very much that – a request, to be granted or not depending on proportionality, practicability and the reason behind it.
Entering into a court battle is also deciding to expose yourself, your evidence, your arguments, and facts about your life. It involves a degree of reputational risk, which can be managed provided you are prepared. Be ready to tell your story, to explain yourself, before court documents without context speak for you. As a journalist, it is important to know what you have a right to know, and as a private individual, it is important to know when journalists have a right to know. It is a legal matter what is in the public domain, but everyone has an interest in carefully considering what they put into it, and how to manage what they do.