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Open Justice: The soul of our legal system

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About The Author

Anirudh Mandagere (Former Law and Social Policy Editor)

Anirudh is the judicial assistant to Lord Justice Jackson. Previously he studied History at St. Catherine’s College, University of Oxford and undertook the Graduate Diploma in Law and the Bar Professional Training Course at City University. Outside of the law, Anirudh enjoys running, badminton and watching the cult Netflix series, ‘Bojack Horseman’.

The principle of open justice is an essential element of the English justice system. According to the principle, court proceedings should be open to the public and judges should deliver their judgments either publicly or in a published form, thus preserving the rule of law. The virtues of this principle of open justice were extolled by Lord Shaw in the case of Scott v Scott. In his judgment, Lord Shaw stated that a public hearing was “one of the surest guarantees of our liberty” and quoted from the philosopher Jeremy Bentham when asserting that “publicity is the very soul of justice”.

Transparency in legal proceedings has long been held as an ideal in English law. In Anglo-Saxon England, trials were held in the presence of the freemen of the local community who were called upon to bring judgment. By the 17th century, the right to have one’s case heard and tried by one’s peers had been affirmed by the abolition of the Star Chamber. More recently, it was English lawyers who drafted the European Convention on Human Rights, of which Article 6 upholds the right “to a fair and public hearing”.

Why is Open Justice So Important?

Open justice serves three important functions. Firstly, it plays an important role in educating members of the public by disseminating accurate information. This enables voters to review current laws and lobby their representatives for reforms. The announcement in 2011 that some courts were to be opened to cameras was justified by the need to ‘demystify’ the judicial process for the benefit of the general public.

An example of where this has been used for positive effect is the 2013 case of Mairead Philpott. Philpott had been convicted for the manslaughter of her six children and her case had attracted considerable media attention. During her appeal, cameras were allowed into the Court of Appeal, enabling the general public to hear the reasons for the Court’s rejection of her appeal.

This case demonstrates the therapeutic role which open justice plays in the administration of the law. It reaffirms the social contract by which any community must continually abide in order to function effectively. If the rationale for judicial decisions is left secret and justice is not perceived to be open, public confidence in the system is consequently undermined and individuals may be more inclined to take justice into their own hands.

Finally, open justice ensures that judges remain accountable for their actions. In the words of Bentham, open justice “keeps the judge himself while trying under trial” by compelling judges to justify their reasoning as a result of the publication of their decisions. In a liberal democracy, judges are given a great degree of discretion and independence from the state. The principle of open justice keeps an important check on their power and ensures that any decisions are open to criticism from both the public and press.

A New Challenge to Open Justice

A system without any form of open justice would have profoundly undesirable implications for the rule of law. However, this principle comes at a cost and exists in constant tension with the values of privacy and security. The House of Lords in Scott reflected on the value of privacy, withLord Atkinson noting that a system of open justice may be “painful, humiliating or deterrent both to parties and witnesses”. However, Lord Shaw finally concluded that “concession to such feelings” would risk devaluing the principle of liberty upon which open justice was originally founded.

Much has changed since the House of Lords heard the case of Scott in 1913. While Article 6 of the European Convention affirms the importance of open justice, it also accepts that there are limitations to this principle. Article 6 itself provides exceptions including those:

In the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.  

The issue of privacy is of particular relevance when the parties to a hearing are commercial entities. In a hearing, commercial parties usually seek to protect themselves from competitors in order to preserve their position in the market. Exposing sensitive commercial documents can risk undermining business strategy and creating ‘bad press’ for the company at risk. International commercial arbitration proceedings have proved increasingly popular due to the confidential nature of the tribunal and final award.

This has been recognised by the European Commission in the context of confidential commercial information. In 2016, a new ‘Trade Secrets Directive’ will be introduced which will seek to harmonise the law across the EU, in addition to safeguarding the confidentiality of documents in trade secrets disputes. The Directive will do this by creating the option of a ‘Confidentiality Club’; in essence, this will be an agreement between parties in litigation to limit which persons can review confidential documents relating to ‘trade secrets’. In the context of the Directive, ‘Trade secrets’ include confidential intangible rights and information which cannot be leaked during legal proceedings. Thus, it has been accepted that there are clear limitations to the practical definition of ‘open justice’.

The need to balance the privacy of confidential business information with the principle of open justice has been recognised by the English Courts. Part 39.2 of the Civil Procedure Rules affirms that, while the general rule is for a hearing to be public, exceptions can be made where necessary. This premise was illustrated in the recent case of Sahaviriya Steel Industries UK Ltd v Hewden Stuart Ltd [2015] EWHC 2726 (Ch).

Balancing the Issues

Sahaviriya Steel Industries (“SSI”) was a company suffering from the collapse of the market price of slab steel. In 2015 the price of steel had reduced markedly from $500 per tonne to $300 per tonne. At this time, the sums which SSI owed to creditors were extremely large, resulting in the need either to restructure the company’s finances, or to negotiate a sale of its assets so that the company’s coke and power business could be preserved. If neither of these options were achieved, the company would have been placed into liquidation, resulting in all SSI employees being made redundant and any unsecured creditors losing out on any claims.

In light of this, SSI applied for a validation order under Section 127 Insolvency Act 1986. The purpose of this application would be to "keep the coke ovens in operation, meet its wage bills, and to meet incidental expenditure with those operations". Consequently, such an order would buy SSI time to negotiate a restructuring of its finances or a sale of its assets.

SSI’s application for a private hearing was based on the exception in Part 39.2(c) of the Civil Procedure Rules which states that an application for privacy can be made when a public hearing would expose damaging confidential information. While SSI’s request for privacy was granted, Judge Pelling Q.C. felt it necessary to explain the reasons behind his decision. He noted that, if the applications were to succeed, confidential information would need to be disclosed. If such information were to be openly exposed in the public eye, the damage to SSI would be so paramount that it might damage the chances of a successful restructuring or asset sale.

Can these concepts be reconciled?

In his judgment, Judge Pelling made clear that SSI’s successful application for a private hearing was a clear exception to the general rule that all hearings should be public. It was only “in the interests of justice” that a private hearing could occur. In the earlier case of Global Torch Ltd v Apex Global Management Ltd [2013] EWCA Civ 819, an application for private hearing was issued on the basis that allegations of egregious misconduct could damage the parties’ reputations. While the Court of Appeal held that the public airing of accusations would damage the reputation of the parties, this was no excuse for undermining the principle of open justice that had existed for so long. The reasoning of Global Torch reflects the potency of the principle in Scott. Embarrassment and damage to reputation cannot override the importance of ensuring open justice.

Regardless of this, in SSI, the High Court was careful not to undermine the open justice principle even in light of confidentiality. As a result, Judge Pelling found it important to deliver at least a limited public judgment to explain his reasons for granting the application. Lord Shaw was right to state that the principle of open justice lies at the heart of the rule of law. However, it would be presumptuous to assume that in all instances the principle will override all others. Instead, it is important to recognise that in some cases other interests are more important for the proper administration of justice. In SSI, for example, an open court would have undermined the purpose of ensuring a successful restructuring or asset sale. Thus, the derogations from the principle of open justice can only be justified when such a blanket policy would no longer uphold the rule of law itself.

Conclusion

The Chief Justice of Canada, the Rt Hon Beverley McLachlin P.C., famously stated that “The law belongs to the people.” The principle of open justice is the cornerstone for ensuring that law fulfils this role, and does not become a tool for arbitrary power. Open justice exists in order to ensure that decisions in court are served properly and effectively. Exceptions to the rule of open justice represent those instances in which a completely open court would have undermined the purpose of the hearing. Nevertheless, when an application is made for a private hearing, the reasons for allowing it must be justified by the Court. This enables the confidentiality of information to be maintained, while ensuring that such exceptions are properly justified.

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Tagged: Commercial Law, Justice

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