GUARDIAN NEWS & MEDIA LIMITED v ROZANOV and Anor

The original employment tribunal proceedings

Anonymity and redaction: rule 50

The parties agreed that the names of Bank clients should be redacted. The respondent made a rule 50 application additionally to redact the names of four individuals and to keep a ‘confidential annexe’ ie a small bundle of three articles.

Three of the four names were ‘Individual 2’; ‘relative 19’ and ‘relative 20’. They are from one family. They paid in funds in relation to one of the clients whose names has been redacted. The tribunal agreed to the redaction of the names of the additional three individuals. It was a transaction which would come under close scrutiny as it is the subject of alleged protected disclosures. There was a risk that the identity of that client could be identified were the names of these three individuals not redacted. Client confidentiality is very important in the Banking world. Indeed the claimant agreed that clients’ names should be redacted.

The confidential annex contained documents which the CROs would have found on internet google searches on that client. We understand it comprised three articles. This information would have been handed to Compliance and, on that basis, Compliance would have decided whether the transaction could go ahead. We accept that articles relating to a certain client would make it clear who the client was. Having agreed on the necessity to keep the client’s name redacted, it followed that we should keep these articles confidential. We said the matter could be reopened if necessary when the witnesses were questioned on it. In the event, neither party wished to show the tribunal these documents.

Ex-employee 11 was the former whistleblower. The respondent felt her name should be redacted and not referred to as she had nothing to do with these proceedings and had not chosen to go to a tribunal herself. We did not rule that the name of this individual should be redacted and kept anonymous. We do not know the views off the particular individual, but in any event, we do not see that her position is any different from numerous individuals who are named during proceedings as part of the context for a case. We are unaware of any principle that whistleblowers in this context should get extra protection. The principle of open justice is a strong one and looking at the case law, it is insufficient solely to call to aid the right to privacy. No persuasive case was put to us as to why this person’s name should be anonymised.

GNM’s application

Please may I request copies of:

A number of documents that were referred to in the course of the hearing in the case (these are itemised in Annex A);

The ET1, ET3 and any other related or clarifying statements of case documents;

Any witness statements and skeleton arguments that were relied upon in open court.

There appears to me to be a number of matters of legitimate public interest arising out of the matters contained in the judgment, including:

Evidence that EFG Private Bank Ltd repeatedly and deliberately colluded with high-risk clients and politically-exposed persons (PEPs) in breach of UK anti-money laundering regulations;

Evidence that an employee of EFG Private Bank Ltd attempted to facilitate a transaction of $100m sourced from associates of Ramzan Kadyrov, a Chechen warlord who has been credibly accused of serious human rights atrocities;

Evidence that senior management at EFG Private Bank, including its chief executive, failed to take action when evidence emerged that the same employee had failed to abide by anti-money laundering regulations. [emphasis added]

I require these documents for journalistic reasons, including (1) to better understand the matters referred to in the judgment; (2) to ensure that any reporting of this matter fairly and accurately reflects all the relevant matters in the hearing; (3) for the journalistic purpose of stimulating informed debate about matters of public interest; (4) to obtain further information about this matter that may assist in further enquiries. I believe these give rise to a legitimate interest on my part to have access to these documents. [emphasis added]

I therefore (1) am seeking permission from you, as the Judge who heard the case, for access to these documents; (2) in so far as the Employment Tribunal has retained copies of them, I request copies of these from the tribunal. I confirm that I will pay any reasonable copying costs involved in this process.

The consideration of the application

The Respondent has retained a clean copy of the Tribunal bundles in archive, but does not accept that it is under any obligation to provide access to such documents. Without prejudice to that position, there would be significant cost involved in retrieving and locating the documents referred to.

GNM seeks the above documents for a number of reasons. Importantly, the documents sought would greatly assist in facilitating a better understanding of the case and the Judgment itself. Further, the wider view of evidence referred to in the judgment and in open court would allow fair and accurate reporting of the matter.

The underlying subject matter discussed in the Judgment is of public interest including questions of compliance with Financial Conduct Authority and Prudential Regulatory Authority obligations as well as the Bank’s handling of the dismissal. Consequently, the material is also sought to obtain further information to assist in enquiries. [emphasis added]

“the Tribunal is now functus officio and has no basis for hearing the application or making any Order as a result” (“the Functus Argument”);

“the Tribunal has no power to require a party to furnish either the Tribunal or GNM with any documents” (“the Vires Argument”); and

“if such discretionary power exists, the Tribunal should decline to exercise it” (“the Discretion Argument”).

The issues as they now stand

The Guardian's application is now as follows:

For disclosure by the tribunal of the ET1 and ET3

For an Order that the respondent provide GNM with the following

documents (since the tribunal does not hold clean copies):

That GNM will pay copying costs of (a) and (b) above.

That (a) and (b) above be disclosed without the redactions in respect of Bank

clients generally and that the rule 50 order be lifted in relation to 'individual 2',

'relative 19' and 'relative 20'.

The decision of the employment tribunal

The Notice of Appeal

The Appellant does not seek to appeal the refusal of access to the trial bundle or refusal of the application to set-aside the Order made under Rule 50 for redaction and anonymisation.

Progress of the appeal

The reasoning of the employment tribunal challenged in the appeal

Throughout our deliberations, we have borne in mind the overriding importance of the open justice principle.

Given the conflict of Convention rights and other interests in this case, we have scrutinised each element. It is for GNM to explain how granting access to the documents will advance the open justice principle.

43.Having regard to the three matters of public interest identified in Mr Pegg's letter, we find that the reason for requesting. access is to explore whether the Bank colluded with high-risk clients in breach of the UK's money-laundering regulations. Although GNM's formal submissions of 12 March 2019 add that the public interest included questions of compliance with regulatory authorities as well as the Bank's handling of the dismissal, we do not accept the latter was the purpose. It was not referred to in Mr Pegg's letter and is referred to only briefly as an afterthought in the legal submission. The Guardian has therefore not satisfied us that its purpose relates to the treatment of the claimant.

The Supreme Court in Dring identifies two principal purposes of the open justice principle. In short, they are to hold judges to account and subject them to public scrutiny, and to enable the public to understand how the justice system works and why decisions are taken. The Guardian's purpose does not advance these purposes because it does not aim to examine the claimant's treatment (which was the subject of his claim) or the tribunal's investigation of that issue.

We bear in mind that, had Guardian reporters attended the hearing, they could have made any use of the information revealed as they wished. However, they did not attend, and now make an application based on the principle of open justice.

We do not go as far as saying the principle of open justice is not engaged at all. Dring contemplates there could be further purposes for the open justice principle, although there is no indication as to what these might be. Furthermore, it is possible that GNM might pursue avenues of exploration which are tangentially relevant to the claimant's treatment and his case. However, this is not a situation where a newspaper wishes to report on the case itself or on issues of treatment of whistleblowers for example. When put into the equation with conflicting rights and interests, the argument that granting access will advance the open justice principle is weaker than it might otherwise be when a request is made by the media. [emphasis added]

We now consider whether to grant GNM's application to disclose the various categories of documents (set out at paragraph 8 above), albeit still in their redacted form. Apart from an additional point on the trial bundle, our reasoning applies to all the categories.

A big concern here is that the request was made after the proceedings had concluded and that the tribuna1 no longer holds any documents apart from the ET1 and ET3. This would mean making an order for disclosure against the respondent (the claimant says he has not retained hard copies) many months after the case has ended.

The Guardian did not apply for disclosure until roughly 6 weeks after the judgment was sent out and four months after the last day of the hearing. It is now 6. months since the last day of the hearing. It is true that the delay in dealing with the application has in part been due to tribunal availability, but some time lapse in dealing with applications is to be expected. Moreover, it was only logical to await the outcome of the Supreme Court decision in Dring.

Had GNM attended the original hearing and made its requests then, it would have been far simpler. Facilities are available for journalists to attend and see all the documents referred to. We appreciate that GNM may not have resources to attend every hearing, but we are in a more difficult situation now where an Order would have to be made against the respondent.

The respondent would have to retrieve the papers, identify clean copies, identify the categories of document ordered and supply them to GNM. It would have to calculate the copying costs, which GNM has undertaken to cover. It would be entitled to request the costs of legal supervision of the exercise. The tribunal could order this, but in turn the amount might become the subject of dispute.

64.Regarding the trial bundle, the tribunal did not at the hearing read the entire bundle. That would not be usual in a lengthy employment tribunal case where bundles are nearly always prepared prior to witness statements and frequently contain many hundreds of pages of irrelevant or unnecessary documents which are never referred to. We cannot now say which documents we did read other than those explicitly referred to us by the parties during evidence or set out by us in the judgment. If we were to order disclosure of only those documents referred to in the judgment, there is then the additional task, falling on either the respondent and/or the tribunal of identifying the page number of the documents referred to and highlit by GNM.

When weighed against the principle of open justice, we believe this is disproportionate. The case was heard in open court. There was a very detailed judgment. Other newspapers were able to make reports at the time. Media and other third parties were free to attend, listen and take copies. It is now more than 6 months after the hearing concluded and three months since the judgment was sent out.

We have mentioned why we do not believe the principle of open justice is powerfully engaged by the purpose of GNM's application. But even if we are completely wrong on that and it is a strong factor, we still think an Order against the respondent now would be disproportionate for the reasons given above.

Nevertheless, the tribunal does hold the ET1 and ET3 on file. It is not unduly onerous for the tribunal to make a copy of these two documents and send them to GNM. No redactions appear necessary to us and in any event, this is the form in which these pleadings appeared in the trial bundles. Copies of these documents will be sent to the respondent by separate letter. [emphasis added]

The appeal

Ground 1-The Tribunal failed to properly define the scope of the open justice principle

Ground 2 -The Tribunal's decision that granting the documents would not advance the open justice principle was perverse

Ground 3 - The Tribunal's evaluation as to the proper balance between open justice and the countervailing factors tending away from disclosure was clearly wrong

The Answers

That the documents sought engaged or potentially engaged the Article 8 European Convention privacy rights of the individuals identified in them, as the Tribunal recognised in [50]-[54) of the Decision, with the result that in any event, before the Tribunal could lawfully direct access to any of the documents sought in accordance with s.6 of the Human Rights Act, GNM would be required to justify the disclosure of each document sought, rather than its compendious approach by an application for categories of documents.

The Law

Open Justice

As Lord Hewart CJ famously declared, in R v Sussex Justices, Ex p McCarthy [1924] 1 KB 256, 259, ‘it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’. That was in the context of an appearance of bias, but the principle is of broader application. With only a few exceptions, our courts sit in public, not only that justice be done but that justice may be seen to be done.”

The starting point is the common law principle of open justice. In R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates' Court [2012] EWCA Civ 420, [2012] 3 All ER 551 CA, the Court of Appeal described the principle of open justice as follows:

This was echoed by the Supreme Court in R (on the application of C) v Secretary of State for Justice [2016] UKSC 2:

In Scott v Scott [1913] AC 417 HL, Lord Atkinson acknowledged the importance of the principle in the following terms:

The purposes of the open justice principle

42 The principal purposes of the open justice principle are two-fold and there may well be others. The first is to enable public scrutiny of the way in which courts decide cases to hold the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly. In A v British Broadcasting Corpn [2015] AC 588, Lord Reed JSC reminded us of the comment of Lord Shaw of Dunfermline, in Scott v Scott [1913] AC 417, 475, that the two Acts of the Scottish Parliament passed in 1693 requiring that both civil and criminal cases be heard “with open doors”, “bore testimony to a determination to secure civil liberties against the judges as well as against the Crown” (para 24).

43 But the second goes beyond the policing of individual courts and judges. It is to enable the public to understand how the justice system works and why decisions are taken. For this they have to be in a position to understand the issues and the evidence adduced in support of the parties’ cases. In the olden days, as has often been said, the general practice was that all the argument and the evidence was placed before the court orally. Documents would be read out. The modern practice is quite different. Much more of the argument and evidence is reduced into writing before the hearing takes place. Often, documents are not read out. It is difficult, if not impossible, in many cases, especially complicated civil cases, to know what is going on unless you have access to the written material.

Dring contemplates there could be further purposes for the open justice principle, although there is no indication as to what these might be.

Here a comment in the judgment of Sir Christopher Staughton in Ex parte P., The Times, 31 March 1998; Court of Appeal (Civil Division) Transcript No. 431 of 1998, is relevant. In his judgment, Sir Christopher Staughton states: "When both sides agreed that information should be kept from the public that was when the court had to be most vigilant." The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public's confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties' or witnesses' identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked, with the expense and the interference with the administration of justice which this can involve.

Any interference with the public nature of court proceedings is therefore to be avoided unless justice requires it. However Parliament has recognised there are situations where interference is necessary. [emphasis added]

The Public Interest

The open justice principle is grounded in the public interest, irrespective of any particular public interest the facts of the case give rise to. It is no answer therefore for a party seeking restrictions on publication in an employment case to contend that the employment tribunal proceedings are essentially private and of no public interest accordingly.

Convention Rights

This principle of open justice is .also an aspect of the right to a fair trial, provided by art 6 of the European Convention on Human Rights. Art 6(1) says:

Art 10 is also relevant. Art 10(1) says:

As with art 6, art 10 rights are qualified. Art 10(2) says:

25.Other Convention rights (including the right to respect for a private life under art 8) may outweigh the requirement for public access to judicial proceedings or pronouncements. Art 8 says:

Where Convention rights give rise to competing interests, the House of Lords in Re S (a child) (identification: restrictions on publication), [2004] UKHL 47, [2004J 4 All ER 683 said:

The Press

It has been recognised for many years that press reporting of legal proceedings is an extension of the concept of open justice, and is inseparable from it. In reporting what has been said and done at a public trial, the media serve as the eyes and ears of a wider public which would be absolutely entitled to attend but for purely practical reasons cannot do so.

Over the past decade the media's ability to cover court proceedings in all courts and tribunals has declined. While proceedings may take place in open court, it is no longer the case that media organisations will have the capacity to cover hearings to the extent that once was the case. Often it is only with retrospect, following a judgment, that the importance of proceedings is truly understood. For example, an unexpected result in proceedings may generate a legitimate interest in how proceedings were conducted and could raise issues of public interest and concern. Practically, a media even be aware of a particular case until a public judgment. In any case, it is only after judgment, in many cases, that editorial interest in a particular case can be determined.

It is simply not feasible for a media organisation to devote the resources to cover live proceedings. Often there is not continuous coverage of even the most important cases. The reality is that it is not possible, even for large media organisations (and particularly smaller ones), to cover every hearing. Effectively requiring a media organisation to send a reporter to a hearing in order to be able to properly report and obtain documents from the hearing would mean sending a reporter to every hearing on the off chance that there would be editorial interest in the case. It is simply not feasible. There are not enough journalists to cover this, and financially it would be ruinous. The burden placed on media organisations, as the Judgment appealed does, is wholly disproportionate.

This trend has been exacerbated by the unprecedented Covid-19 pandemic. In circumstances where resources and access has been necessarily reduced, the role of the media as a public watchdog should not suffer, and it need not suffer if a flexible approach to access to documents following the conclusion of proceedings is adopted.

Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed: News Verlags GmbH&Co KG v Austria 31 EHRR 246, 256, para 39, quoted at para 35 above. More succinctly, Lord Hoffmann observed in Campbell v MGN Ltd [2004] 2 AC 457, 474, para 59, “judges are not newspaper editors”. See also Lord Hope of Craighead in In re British Broadcasting Corpn [2010] 1 AC 145, para 25. This is not just a matter of deference to editorial independence. The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive.

The role of rules of procedure

A witness statement which stands as evidence in chief is open to inspection during the course of the trial unless the court otherwise directs. [emphasis added]

Rule 44 says: 'Subject to rules 50 and 94, any witness statement which stands as evidence in chief shall be available for inspection during the course of the hearing by members of the public attending the hearing unless the Tribunal decides that all or any part of the statement is not to be admitted as evidence, in which case the statement or that part shall not be available for inspection.'

The respondent also draws our attention to the Presidential Guidance - General Case Management (2018). Guidance Note 2 paragraph 15 says that the tribunal will need 5 copies of the trial bundle for a full Tribunal including '1 to be shown to the public or media, where appropriate'. Paragraph 17 says:

Paragraph 19 of Guidance Note 3 says that parties should bring 5 copies of their witness statements to the hearing if there is a full tribunal panel, ie 1 copy for the witness table, 1 for each member of the tribunal panel and '1 to be shown to the public and media, Where appropriate'.

Paragraph 24 says 'Rule 44 provides that any witness statement, which stands as evidence in chief, shall be available for inspection during the course of the hearing by members of the public (that includes media) attending the hearing.'

City of Westminster and Dring

7 Extradition proceedings were brought by the US Government under the Extradition Act 2003 against two individuals alleged to have been involved in the bribery of Nigerian officials by Kellogg Brown and Root (KBR), a subsidiary of the well known US company Halliburton.

8 The two people were Geoffrey Tesler, a London based solicitor, and Wojciech Chodan, a former executive of MW Kellogg, a company associated with KBR. Both men are British citizens.

9 The Tesler extradition application was heard over five days between November 2009 and January 2010. The Chodan application was heard on 22 February 2010. The hearings were conducted in open court throughout. The US Government was represented by David Perry QC and the defendants were similarly represented by leading counsel. The district judge gave judgment in the Tesler case on 25 March 2010 and in the Chodan case on 20 April 2010. Both defendants were ordered to be extradited.

10 Prior to the delivery of the district judge’s judgments, the Guardian wrote to the court asking to be provided with copies of various documents which had been referred to in the course of the extradition hearings. In summary the documents were:

11 The judge gave a judgment on 20 April 2010 ruling against the Guardian. She acknowledged the importance of the principle of open justice. She emphasised that the public and press had not been excluded from any part of the proceedings. She stated that all the issues relied upon by any of the parties had been fully set out in oral submissions in open court by senior counsel in one case over a period of four days and in the other case over a whole day. Every member of the public and the press in attendance heard the clear and able expositions of all the issues in great detail. Copies of her written judgments setting out her reasons for ordering extradition were available to any member of the public or press requesting them. After considering the case law and the Criminal Procedure Rules she held that “this court does not have the power to direct the provision of the documents requested". She concluded by referring to problems which would arise if she were wrong in her view of the law:

“Practical problems would arise if the view was taken that the decision I have just outlined is wrong in principle and that members of the press and the public may require as of right to be provided with written copies of documents and exhibits relied upon in the open court proceedings. There are a very large and growing number of extradition cases, many with a high public profile, passing through this court in a very tight timetable required by the Extradition Act [2003]. To whom would any ‘direction’ for the provision of the material be directed? In this case the applicants wish to see affidavits and files of correspondence some of which are provided by the Government, some of which are provided by the defence. In these cases alone the requested documents run to hundreds of pages. The court itself is provided the papers by the parties in extradition proceedings. Those documents are not usually retained by the court at the conclusion of the hearing but are forwarded to the Secretary of State, the High Court or returned to the parties as appropriate. The court has very limited court staff time and photocopying facilities. The practical problems in producing copies of voluminous correspondence in sufficient time for contemporaneous reporting of the case for any member of the press or the contemporaneous understanding of any member of the public, who required them as of right, whether or not they had attended the court hearing, would be immense and lead to inevitable delays and public expense. Open justice requires that criminal proceedings are conducted in open court with access to the public and the press who may see, hear and report on those proceedings and subject them to proper public scrutiny. That course has been followed in both these cases. I am not granting the application.” [emphasis added]

69 The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.

70 Broadly speaking, the requirements of open justice apply to all tribunals exercising the judicial power of the state. The fact that magistrates! courts were created by an Act of Parliament is neither here nor there. So for that matter was the Supreme Court, but the Supreme Court does not require statutory authority to determine how the principle of open justice should apply to its procedures.

73 More fundamentally, although the sovereignty of Parliament means that the responsibility of the courts for determining the scope of the open justice principle may be affected by an Act of Parliament, Parliament should not be taken to have legislated so as to limit or control the way in which the court decides such a question unless the language of the statute makes it plain beyond possible doubt that this was Parliament’s intention. …

75 Similarly, I do not consider that the provisions of the Criminal Procedure Rules are relevant to the central issue. The fact that the rules now lay down a procedure by which a person wanting access to documents of the kind sought by the Guardian should make his application is entirely consistent with the court having an underlying power to allow such an application. The power exists at common law; the rules set out a process. [emphasis added]

76 I turn to the critical question of the merits of the Guardian’s application. The application is for access to documents which were placed before the district judge and referred to in the course of the extradition hearings. The practice of introducing documents for the judge’s consideration in that way, without reading them fully in open court, has become commonplace in civil and, to a lesser extent, in criminal proceedings. The Guardian has a serious journalistic purpose in seeking access to the documents. It wants to be able to refer to them for the purpose of stimulating informed debate about the way in which the justice system deals with suspected international corruption and the system for extradition of British subjects to the USA.

77 Unless some strong contrary argument can be made out, the courts should assist rather than impede such an exercise. The reasons are not difficult to state. The way in which the justice system addresses international corruption and the operation of the Extradition Act 2003 are matters of public interest about which it is right that the public should be informed. The public is more likely to be engaged by an article which focuses on the facts of a particular case than by a more general or abstract discussion. [emphasis added]

79 The first objection is based on too narrow a view of the purpose of the open justice principle. The purpose is not simply to deter impropriety or sloppiness by the judge hearing the case. It is wider. It is to enable the public to understand and scrutinise the justice system of which the courts are the administrators.

80 The second objection is correct but not of itself decisive. The practice of the courts is not frozen.

82 I do not regard the third objection as a strong objection on the facts of this case. The Guardian put forward credible evidence that it was hampered in its ability to report as fully as it would have wished by not having access to the documents which it was seeking. That being so, the court should be cautious about making what would really be an editorial judgment about the adequacy of the material already available to the paper for its journalistic purpose.

83 The courts have recognised that the practice of receiving evidence without it being read in open court potentially has the side effect of making the proceedings less intelligible to the press and the public. This calls for counter measures. In SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498 Lord Bingham referred to the need to give appropriate weight both to efficiency and to openness of justice as the court’s practice develops. He observed that public access to documents referred to in open court might be necessary. In my view the time has come for the courts to acknowledge that in some cases it is indeed necessary. It is true that there are possible alternative measures. A court may require a document to be read in open court, but it is not desirable that a court should have to take this course simply to achieve the purpose of open justice. A court may also declare that a document is to be treated as if read in open court, but that is merely a formal device for the exercise of a power to allow access to the document. I do not see why the use of such a formula should be required. It may have the advantage of ensuring that other parties have an opportunity to comment, but that can equally be achieved if, in a case such as the present, the applicant is required to notify the parties to the litigation of the application.

84 I am not impressed by the fourth objection, based on the practical problems which it is said would arise if the Guardian’s application were to succeed. Rule 5.8 of the Criminal Procedure Rules 2011 provides a sensible and practical procedure where a member of the public, including a reporter, wants to obtain information about a case or to inspect or copy a document. The applicant may be required to pay an appropriate fee; it must specify what it wants; and it must explain for what purpose the information is required.

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. However, there may be countervailing reasons. In company with the US Court of Appeals, 2nd Circuit, and the Constitutional Court of South Africa, 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.

87 In this case the Guardian has put forward good reasons for having access to the documents which it seeks. There has been no suggestion that this would give rise to any risk of harm to any other party, nor would it place any great burden on the court. Accordingly, its application should be allowed.

90 Although I disagree with the reasoning of the courts below, I recognise that this decision breaks new ground in the application of the principle of open justice, although not, as I believe, in relation to the nature of the principle itself.

2 This case is about how much of the written material placed before the court in a civil action should be accessible to people who are not parties to the proceedings and how it should be made accessible to them. It is, in short, about the extent and operation of the principle of open justice. …

3 The circumstances in which this important issue comes before the court are unusual, to say the least. Cape Intermediate Holdings Ltd (“Cape") is a company that was involved in the manufacture and supply of asbestos. In January and February 2017, it was the defendant in a six-week trial in the Queen"s Bench Division before Picken J. The trial involved two sets of proceedings, known as the “PL claims" and the “CDL claim"", but only the PL claims are relevant to this appeal. In essence, these were claims brought against Cape by insurers who had written employers’ liability policies for employers. The employers had paid damages to former employees who had contracted mesothelioma in the course of their employment. The employers, through their insurers, then claimed a contribution from Cape on the basis that the employees had been exposed at work to asbestos from products manufactured by Cape. It was alleged that Cape had been negligent in the production of asbestos insulation boards; that it knew of the risks of asbestos and had failed to take steps to make those risks clear; indeed, that it obscured, understated and unfairly qualified the information that it had, thus providing false and misleading reassurance to employers and others. Cape denied all this and alleged that the employers were solely responsible to their employees, that it did publish relevant warnings and advice, and that any knowledge which it had of the risks should also have been known to the employers.

4 Voluminous documentation was produced for the trial. Each set of proceedings had its own hard copy “core bundle", known as Bundle C, which contained the core documents obtained on disclosure and some documents obtained from public sources. The PL core bundle amounted to over 5,000 pages in around 17 lever arch files. In addition, there was a joint Bundle D, only available on an electronic platform, which contained all the disclosed documents in each set of proceedings. If it was needed to refer to a document in Bundle D which was not in Bundle C, it could immediately be viewed on screen, and would then be included in hard copy in Bundle C. The intention was that Bundle C would contain all the documents referred to for the purpose of the trial, whether in the parties" written and oral opening and closing submissions, or in submissions or evidence during the trial.

5 After the trial had ended, but before judgment was delivered, the PL claims were settled by a consent order dated 14 March 2017 and sealed on 17 March 2017. The CDL claim was also settled a month later, before judgment.

6 The Asbestos Victims Support Groups Forum UK (“the Forum") is an unincorporated association providing help and support to people who suffer from asbestos-related diseases and their families. It is also involved in lobbying and promoting asbestos knowledge and safety. It was not a party to either set of proceedings. On 6 April 2017, after the settlement of the PL claims, it applied without notice, under the Civil Procedure Rules, CPR r 5.4C, which deals with third party access to the “records of the court", with a view to preserving and obtaining copies of all the documents used at or disclosed for the trial, including the trial bundles, as well as the trial transcripts. This was because the Forum believed that the documents would contain valuable information about such things as the knowledge of the asbestos industry of the dangers of asbestos, the research which the industry and industry-related bodies had carried out, and the influence which they had had on the Factory Inspectorate and the Health and Safety Executive in setting standards. In the Forum’s view, the documents might assist both claimants and defendants and also the court in understanding the issues in asbestos-related disease claims. No particular case was identified but it was said that they would assist in current cases.

7 That same day, the master made an ex parte order designed to ensure that all the documents which were still at court stayed at court and that any which had been removed were returned to the court. She later ordered that a hard drive containing an electronic copy of Bundle D be produced and lodged at court. After a three-day hearing of the application in October, she gave judgment in December, holding that she had jurisdiction, either under CPR r 5.4C(2) or at common law, to order that a non-party be given access to all the material sought. She ordered that Mr Dring (now acting for and on behalf of the Forum) should be provided with the hard copy trial bundle, including the disclosure documents in Bundle C, all witness statements, expert reports, transcripts and written submissions. She did not order that Bundle D be provided but ordered that it be retained at court.

41 The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question. The extent of any access permitted by the court’s rules is not determinative (save to the extent that they may contain a valid prohibition). It is not correct to talk in terms of limits to the court’s jurisdiction when what is in fact in question is how that jurisdiction should be exercised in the particular case. ..

44 It was held in Guardian News and Media [2013] QB 618 that the default position is that the public should be allowed access, not only to the parties’ written submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing. It follows that it should not be limited to those which the judge has been asked to read or has said that he has read. One object of the exercise is to enable the observer to relate what the judge has done or decided to the material which was before him. It is not impossible, though it must be rare, that the judge has forgotten or ignored some important piece of information which was before him. If access is limited to what the judge has actually read, then the less conscientious the judge, the less transparent is his or her decision.

45 However, although the court has the power to allow access, the applicant has no right to be granted it (save to the extent that the rules grant such a right). It is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle. In this respect it may well be that the media are better placed than others to demonstrate a good reason for seeking access. But there are others who may be able to show a legitimate interest in doing so. As was said in both Kennedy [2015] AC 455, at para 113, and A v British Broadcasting Corpn [2015] AC 588, at para 41, the court has to carry out a fact-specific balancing exercise. On the one hand will be “the purpose of the open justice principle” and “the potential value of the information in question in advancing that purpose”.

46 On the other hand will be “any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others”. There may be very good reasons for denying access. The most obvious ones are national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality. In civil cases, a party may be compelled to disclose documents to the other side which remain confidential unless and until they are deployed for the purpose of the proceedings. But even then there may be good reasons for preserving their confidentiality, for example, in a patent case.

47 Also relevant must be the practicalities and the proportionality of granting the request. It is highly desirable that the application is made during the trial when the material is still readily available, the parties are before the court and the trial judge is in day-to-day control of the court process. The non-party who seeks access will be expected to pay the reasonable costs of granting that access. People who seek access after the proceedings are over may find that it is not practicable to provide the material because the court will probably not have retained it and the parties may not have done so. Even if they have, the burdens placed on the parties in identifying and retrieving the material may be out of all proportion to benefits to the open justice principle, and the burden placed upon the trial judge in deciding what disclosure should be made may have become much harder, or more time-consuming, to discharge. On the other hand, increasing digitisation of court materials may eventually make this easier. In short, non-parties should not seek access unless they can show a good reason why this will advance the open justice principle, that there are no countervailing principles of the sort outlined earlier, which may be stronger after the proceedings have come to an end, and that granting the request will not be impracticable or disproportionate.

48 It is, however, appropriate to add a comment about trial bundles. Trial bundles are now generally required. They are compilations of copies of what are likely to be the relevant materials- the pleadings, the parties’ submissions, the witness statements and exhibits, and some of the documents disclosed. They are provided for the convenience of the parties and the court. To that end, the court, the advocates and others involved in the case may tag, mark or annotate their copies of the bundle as an aide memoire. But the bundle is not the evidence or the documents in the case. There can be no question of ordering disclosure of a marked up bundle without the consent of the person holding it. A clean copy of the bundle, if still available, may in fact be the most practicable way of affording a non-party access to the material in question, but that is for the court hearing the application to decide. [emphasis added]

Disclosure of documents to third parties

51 We would urge the bodies responsible for framing the court rules in each part of the United Kingdom to give consideration to the questions of principle and practice raised by this case. About the importance and universality of the principles of open justice there can be no argument. But we are conscious that these issues were raised in unusual circumstances, after the end of the trial, but where clean copies of the documents were still available. We have heard no argument on the extent of any continuing obligation of the parties to co-operate with the court in furthering the open justice principle once the proceedings are over. This and the other practical questions touched on above are more suitable for resolution through a consultative process in which all interests are represented than through the prism of an individual case.

The fact that the court may no longer have a copy of a document on its file (for example, because the document was filed only in hard copy and was returned after the hearing) will not prevent the court from ensuring that a non-party can obtain a copy, if the open justice principle requires this. The court could, for example, order one of the parties to file the document again or to provide a copy directly to a non-party. Moreover, there is nothing in the CPR which precludes the court from making an order under its common law powers to enable a non-party to obtain a copy of a document which has been served in the litigation, even if the document has not been filed by a party.

Referring to material in open court

PNM’s application is not that the trial should be conducted so as to withhold his identity. If it had been, the considerations urged by Lord Kerr and Lord Wilson JJSC in their judgments in this case, might have had considerable force. But it is now too late for that. PNM’s application is to prohibit the reporting, however fair or accurate, of certain matters which were discussed at a public trial. These are not matters in respect of which PNM can have had any reasonable expectation of privacy. The contrast between this situation and the case where a newspaper responds to a tip-off about intensely personal information such as a claimant’s participation in private drug rehabilitation sessions could hardly be more stark.

That is not the end of PNM’s article 8 right, because he is entitled to rely on the impact which publication would have on his relations with his family and their relations with the community in which he lives. I do not underestimate that impact. There is force in the judge’s observation that the public nature of the trial, combined with the notoriety of the case, especially in the Oxford area, means that some people will know of the allegations about PNM in any event. But whether that be so or not, the impact on PNM’s family life of what was said about him at the trial is no different in kind from the impact of many disagreeable statements which may be made about individuals at a high profile criminal trial. A defendant at such a trial may be acquitted, possibly on an issue of admissibility, after bruising disclosures have been made about him at the trial. Within the limits of professional propriety, a witness may have his integrity attacked in cross-examination. He may be accused by other witnesses of lying or even of having committed the offence himself. All of these matters may be exposed in public under the cloak of the absolute immunity of counsel and witnesses from civil liability, and reported under the protection of the absolute privilege from liability for defamation for fair, accurate and contemporaneous publication. The immunity and the privilege respect the law’s conviction that the collateral impact that this process has on those affected is part of the price to be paid for open justice and the freedom of the press to report fairly and accurately on judicial proceedings held in public.

The appellate test on balancing of Convention rights and proportionality applicable in the EAT

51 Finally, before turning to the arguments advanced by Mr Tomlinson, both sides agree that the scope for this appeal tribunal to interfere with the employment judge’s decision depends on a finding that there was an error of principle or that he reached a decision that was plainly wrong or outside the ambit of conclusions reasonably open to him. In AAA v Associated Newspapers Ltd [2013] EWCA Civ 554 the Court of Appeal identified the approach as follows:

The exercise of balancing article 8 and article 10 rights has been described as “analogous to the exercise of a discretion”: AAA v Associated Newspapers Ltd [2013] EWCA Civ 554, para 8). While that is at best only an analogy, the exercise is certainly one which, if undertaken on a correct basis, will not readily attract appellate intervention. [emphasis added]

91 That conclusion leaves open the standard which an appellate court should apply when determining whether the trial judge was entitled to reach his conclusion on proportionality, once the appellate court is satisfied that the conclusion was based on justifiable primary facts and assessments. In my view, an appellate court should not interfere with the trial judge’s conclusion on proportionality in such a case, unless it decides that that conclusion was wrong. I do not agree with the view that the appellate court has to consider that judge’s conclusion was “plainly” wrong on the issue of proportionality before it can be varied or reversed. As Lord Wilson JSC says in para 44, either “plainly” adds nothing, in which case it should be abandoned as it will cause confusion, or it means that an appellate court cannot vary or reverse a judge’s conclusion on proportionality of it considers it to have been “merely” wrong. Whatever view the Strasbourg court may take of such a notion, I cannot accept it, as it appears to me to undermine the role of judges in the field of human rights.

64 In conclusion, the references cited above show clearly in my view that to limit intervention to a “significant error of principle” is too narrow an approach, at least if it is taken as implying that the appellate court has to point to a specific principle -whether of law, policy or practice- which has been infringed by the judgment of the court below. The decision may be wrong, not because of some specific error of principle in that narrow sense, but because of an identifiable law in the judge’s reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion. However, it is equally clear that, for the decision to be “wrong” under CPR r 52.11(3), it is not enough that the appellate court might have arrived at a different evaluation. As Elias LJ said in R (C) v Secretary of State for Work and Pensions [2016] PTSR 1344, para 34:

“the appeal court does not second guess the first instance judge. It does not carry out the balancing task afresh as though it were rehearing the case but must adopt a traditional function of review, asking whether the decision of the judge below was wrong . . .”

52.21—(1) Every appeal will be limited to a review of the decision of the lower court unless—

Unless it orders otherwise, the appeal court will not receive—

The appeal court will allow an appeal where the decision of the lower court was—

wrong; or

The appeal court may draw any inference of fact which it considers justified on the evidence. [emphasis added]

21.— Jurisdiction of Appeal Tribunal.

An appeal lies to the Appeal Tribunal on any question of law arising from any decision of, or arising in any proceedings before, an employment tribunal …[emphasis added]

Any person who was a party to any proceeding before a magistrates' court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved … [emphasis added]

Standard of appellate review applying to a proportionality assessment. The standard of appellate review applicable to the evaluation of the compliance with the Convention requirement of proportionality is that laid down in R (R) v Chief Constable of Greater Manchester Police [2018] 1 WLR 4079 (“R (R)”), at para 64, which refines the test in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911 (“In re B”), which was relied on by the Divisional Court. R (R) establishes a nuanced correctness standard but in my judgment that standard is limited to the evaluative assessment of proportionality and does not extend to the underlying primary and secondary facts to which (in this case) the test in Edwards v Bairstow [1956] AC 14 continues to apply. That test imposes an “unreasonableness” standard and so, unless it is shown that the findings were such that no reasonable tribunal could have made them, the primary and secondary factual findings of the trial judge will stand. Lord Hamblen and Lord Stephens JJSC agree with this: analysis of the standard applying to the findings of fact (judgment, para 49).

In short, I would hold that the standard of appellate review applicable in judicial review following R (R) should apply to appeals by way of case stated in relation to the proportionality assessment but not in relation to the fact-finding that leads to it. [emphasis added]

Whilst we agree that the approach to whether there is an error of law in relation to an issue of proportionality determined in a case stated is that set out in In re B, as clarified by the later case law, Edwards v Bairstow remains the overarching appellate test, and the alleged error of law has to be considered by reference to the primary and secondary factual findings which are set out in the case.

Conclusions