“Justice must be seen to be done”- the effects of the New Civil Procedure Rules on public hearings

The new Civil Procedure Rules might increase litigants’ visibility during court proceedings and cause reputation damage.

The principle of open justice is that ‘justice should not only be done but should manifestly and undoubtedly be seen to be done’.

However, even if the principle in itself is clear, in practice it is hard to understand when and how open justice applies.

And of course, on some occasions in court the parties will try to keep what is said private. This is usually to limit possible negative effects on their reputations and consequences for their careers, businesses or personal lives.

Recently, Chris Grayling, the transport secretary, was accused of impeding the principles of open justice by trying to conduct large parts of the Euroferry Brexit procurement hearing in private. He had awarded more than £100 million in contracts to three ferry companies under no-deal Brexit plans. It later emerged that one of the companies, Seaborne Freight, had been awarded a contract to run services despite having no ships.

The Government was sued by Eurotunnel over the payment on the grounds it constitutes “an unlawful interference in a competitive market”. It ended up paying £33m in an agreement to settle the lawsuit.

Lawyers for Eurotunnel argued that Grayling had attempted to keep documents out of the public domain on improper grounds:

“…it may be that the material is perceived by government to be profoundly embarrassing and it would naturally prefer that it is not in the public domain”.

To prevent litigants from manipulating legal procedures and to reinforce the principle of open justice, several amendments have now been made to the Civil Procedure Rules 1998. The key change, as of 6 April 2019, concerns the conduct of civil hearings: the new provision CPR 39.2 provides that now, by default, hearings should be held in public regardless of the parties’ consent unless the court decides that they must be held in private.

The rules state that the court must differentiate between the right to protect and the right to freedom of expression.

From now, to be held in private, a hearing should fall into one of the following categories: (a) publicity would defeat the object of the hearing; (b) the hearing involves matters relating to national security or confidential information; (c) it is necessary to protect the interests of any child or protected party; (d) the application has been made without notice and it would be unjust to any respondent for the hearing to be public; (e) uncontentious matters arise in the administration of trusts or in the administration of a deceased person’s estate; and lastly (f) the court for any other reason considers it to be necessary to secure the proper administration of justice.

Sir Timothy Kerr, chair of the CPRC (Civil Procedure Rule Committee):

“…we think changes to CPR 39.2 could help to promote awareness that the parties cannot waive the right of the public to open justice”.

Whilst the need to promote open justice is manifestly in the public interest, doing so comes at a price for some litigants, especially the more high-profile ones. These new Civil Procedure Rules changes will expose litigants to increased visibility during the court proceedings, making them more vulnerable and subject to negative reporting and other reputation damage. Accordingly, professional reputation advice is ever more important for parties to a litigated dispute.

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