Open justice and the civil courts

Open justice is the principle upon which most of the UK’s justice system is built.

The aphorism ‘not only must justice be done, it must also be seen to be done’ came into common parlance during a court case back in the 1920s but it is as relevant today as it was almost a century ago.

Justice being seen to be done is the reason why the media can attend and report court hearings and why there is a public gallery in court rooms.

As with all rules, there are exceptions. The principles of open justice must be balanced with the right to privacy – and these two competing elements have led to some controversy in recent years, most notably when celebrities and other powerful people have brought so-called ‘super-injunctions’ to keep potentially embarrassing information about them out of the public domain.

While it is relatively rare for criminal courts to exclude the press and public, that has not always been the case in the civil courts.

Several changes have been made to increase open justice in the civil courts and, from April 6, further changes to the civil procedure rules come into effect.

These new changes are intended to reinforce the principle of open justice but also to clarify how it operates in the civil courts.

The amendments include emphasising the general rule that hearings are to be held in public, and clarifying the test for when a court may direct a private hearing or party/witness anonymisation.

They make it clear the general rule applies not only to traditional hearings in a courtroom, but also those held in chambers or via telephone/videolink.

There will be a new express duty on the court to take reasonable steps to enable public access to hearings, and a new procedure requiring orders for a private hearing or anonymisation to be published on the courts’ website.

Finally, judges will have a new power to direct a represented party to compile and share with a litigant in person a note of a hearing pending the receipt of a transcript.

In many ways, these changes merely emphasise the open justice principle but they also include some welcome clarifications of the current rules.

It will be interesting to see what happens when, and if, any of the new amendments are challenged.

Zep Bellavia is Managing Director of Newport-based solicitors and accountants Bellavia & Associates.