F Woolley and JS Woolley v City and County of Swansea

On 16 June 1999 during the hearing of this appeal, we received a letter from the Editor of the South Wales Evening Post. He asked us to provide the newspaper with copies of the statements made by those persons who give evidence in these proceedings. The letter explains that this request was made because we have (with the agreement of the parties) adopted the now common practice in civil proceedings whereby witness statements stand as the evidence in chief of the witnesses.

The effect of adopting this practice has been that members of the public attending the hearing may only hear part of the evidence of a witness, depending upon the scope of any cross-examination. This raises the question as to whether this hearing may therefore be properly described as being in public. It also gives rise to the risk that a member of the public listening to a witness's evidence may reach an entirely erroneous conclusion as to the scope and effect of that evidence. Where a representative of the press is present, this could also lead to the publication of an inadvertently misleading and possibly damaging report of the effect of that evidence. In either case there is a consequential risk of prejudice to one or both of the parties.

We have therefore had to consider whether we have the power to direct that witness statements generally be made available for inspection by the public and if so, whether we also have the power to exclude individual statements or a part thereof from such a direction in circumstances other than where the evidence is given in private.

We invited submissions from counsel for the parties in this case on the above issues and we are grateful for their assistance to us in reaching our conclusions.

We noted that this situation has only arisen because of the change in the practice of the civil courts as to the manner in which evidence is received. If we had not adopted the practice referred to above, then unless we agreed to hold all or part of the hearing in private (Registered Homes Tribunal (RHT) Rule 7[1]), all the evidence from witnesses would be given orally in the presence of anyone who chose to attend. We understood from counsel that this practice has been prevalent in RHT proceedings for some years, although none of us was aware of any previous instance of a request such as has been made to us today

Our attention was drawn in particular to the provisions of Civil Procedure Rule 32.13 where the criteria for excluding all or part of a witness statement from inspection by the public are found. We concluded that if we did have the power to exclude certain parts of a statement from inspection then we would find it helpful to refer to these criteria. We are not however bound to follow them.

In reaching our decision, we had regard to the terms of RSC Order 38/2A and the Practice Direction referred to therein relating to inspection. We also considered the principles enshrined in Article 6(1) of the European Convention on Human Rights and the decision of the European Commission of Human Rights in Harman v United Kingdom (1984) 7 EHRR 146 and the judgment of the Court of Appeal in FAI General Insurance Co Ltd -v- Godfrey Merrett Robertson Limited & ors (21 December 1998). In the latter case, we found the analysis of the issues touching upon public hearings (at pages 14 to 17) most helpful in reaching our decision.

It was submitted to us on behalf of the Appellant that because there is no explicit RHT Rule permitting inspection then we had no jurisdiction to make such a Direction and further that given the factual context of RHT proceedings we should be slow to infer such a jurisdiction.

The Respondents submitted that the effect of our power to sit in public under Rule 7(1) and our general powers under RHT Rule 15 to regulate our own procedure must include the power to order inspection. Counsel also drew our attention to Rule 9(1) giving the parties the right to call evidence and submitted that such a right must give rise to a consequential right of the public to hear or see that evidence.

We concluded that RHT Rule 15 does entitle us to make a direction for inspection of witness statements. However, we also concluded that any inspection should not take place before the witness has stated on oath that the statement is true to the best of his or her knowledge and belief. The existence of such a power is to be inferred in order to give effect to the public nature of these proceedings with respect to those parts of statements that are not dealt with orally by a witness. We also concluded that we had a general discretion to direct that material be removed prior to such disclosure (in accordance with the principles set out in Article 6(1) of the European Convention on Human Rights).

We then heard an application by the Appellants that in the particular circumstances of this hearing; we should exercise our discretion not to permit inspection of the witness statements as it would be damaging to the interests of the current residents of Felin-Wen Court. We were told by counsel that the newspaper reports already published (without any access to the witness statements by the reporter) had had an adverse effect upon the health of one resident and caused another resident to become upset. It was submitted inter alia that in RHT proceedings it was axiomatic that there would be damage to the interests of current residents consequent upon publicity and that we should therefore be reluctant to permit disclosure. We were also invited to consider the risk of damage from the fact that these proceedings were attracting significant interest in the local community.

The Respondents opposed this application. Counsel pointed out that any damage had already occurred without any disclosure of witness statements and an application to receive evidence in camera had been made by the Appellants in respect of only one very limited issue. We had allowed this application which had not been resisted by the Respondents.

We considered the various matters raised by the Appellants and concluded that there was no sufficient reason not to give effect to the public nature of these proceedings. We therefore direct that the public may inspect the witness statements in the circumstances referred to in paragraph 10 above, this is subject to the limitation that inspection should not include: