England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		8th December 2004

Mr. Justice Park:

Overview

1. The case of Chan v. Alvis was being heard before me six weeks or so ago when, after eight days of hearing, there was an adjournment for a few days. In that period the case settled. The parties thought that it was all over, but The Guardian newspaper had taken an interest in it, and believed that one matter which was mentioned in Mr. Chan's skeleton argument (of which The Guardian had a copy) could give rise to a significant journalistic story.

2. The Guardian now applies to me under provisions of the Civil Procedure Rules (which I will identify later) to be supplied with copies of certain documents from the court file. Mr. Chan is neutral and has taken no part, but Alvis has opposed The Guardian's application. The question is not easy but I have decided that I am going to accede to the application. In the judgment which follows I describe the background, I review the law, and I explain my reasons for deciding as I do.

The Background Facts

3. Mr. Chan is a Singapore businessman. Alvis is a manufacturer of military vehicles. The underlying case of Chan v. Alvis arose out of certain sales of military vehicles which Alvis made to an overseas government in the 1990s. Mr. Chan claimed that he was entitled to a commission. Alvis contended that he was not. The trial began before me on 19^th October of this year, a Tuesday. I had spent the previous day reading my way into the documents and the witness statements in the case.

4. The trial continued for the next week and a half, and in the course of those days a number of witnesses gave evidence, including several witnesses for Alvis. Their evidence-in-chief was taken in the form of their confirming their witness statements, which therefore stood as the evidence-in-chief. The last such witness completed his evidence on Thursday, 28^th October. Alvis had one witness of fact left, but he would not be available until the following Monday, so the case was adjourned until then. At some time on Friday, 29^th October I received a message that the parties believed that they had settled the case. On Monday, 1^st November I went into court and made a Tomlin Order. It recited that the parties had agreed confidential terms of settlement, and in the usual way it stayed all further proceedings except for the purpose of carrying the terms into effect. I believed at the time that that was the end of the case as far as I was concerned, but it has turned out not to be so.

5. On 9^th November my clerk received a telephone call and then an email from Mr. Rob Evans, a reporter at The Guardian. Mr. Evans requested that the court make available the witness statements in the case. My reaction was that the parties to the case would have to be consulted to find out whether they agreed. The Guardian contacted the parties. Mr. Chan was neutral but Alvis was opposed to The Guardian's request. In the circumstances I indicated, through my clerk, that The Guardian should serve an application notice seeking an order for the production to it of the witness statements, and that if Alvis continued to oppose the application there would have to be a hearing. A hearing did take place on 6^th and 7^th December, and I now give judgment on it.

6. I will read the relevant parts of The Guardian's application notice and then I will say a little more about how The Guardian's interest arose. The notice states that The Guardian intends:

"to apply for an order that GNL be permitted to inspect and copy various witness statements and documents in the claim of Chan U Seek v. Alvis Vehicles Ltd. [and a reference is then given to the case] because GNL wish to prepare a fair and accurate report of the proceedings and I am entitled to do so pursuant to (a) CPR 32.13; (b) CPR 5.4(2)(c); and/or (c) the court's inherent jurisdiction."

7. The notice specified the documents more specifically in a paragraph of Part C as follows:

"(a) Particulars of Claim; (b) Defence; (c) Reply; (d) Request and Replies to Request for further information; (e) witness statements of [six identified witnesses, all of whom were witnesses for Alvis]; (f) exhibits referenced [a number of references are then given]."

8. The Guardian's interest had arisen, as I understand, as follows. The newspaper did not have a reporter present at all times in the trial, or indeed for much of the time. However, it must have heard about the trial and thought that it might be of interest because a reporter had been in the court on a day which fell a few days after the start of the trial. He obtained a copy of the skeleton argument of Mr. Chan's counsel. I assume that he had spoken to Mr. Chan or to his legal team, or to both, and was given a copy of the skeleton. I knew nothing about that at the time and there is no reason why I should have done.

9. I was told that a Guardian reporter turned up at court on Monday, 1^st November expecting to hear the evidence of Alvis's one remaining witness. It was then that he learned that the case had settled. On the next day (2^nd November) Mr. Evans, The Guardian reporter, wrote to the Head of News at Alvis's parent company, which is now BAE Systems. He said that The Guardian was considering publishing an article about a particular factual matter which he described but which I will not describe here. He said that evidence of the matter had emerged during the case between Mr. Chan and Alvis. Did BAE Systems wish to comment? The Head of News replied late the same day. He said that by reason of the terms of settlement he was prevented from discussing the matter any further. A week later there occurred Mr. Evans's telephone call and email to my clerk which I mentioned earlier.

10. It is apparent that reporters at The Guardian had read the skeleton argument of Mr. Chan's counsel, and obviously they identified in it some facts which Mr. Chan was asserting or which may have been in the evidence of Alvis's witnesses or in some of the numerous documents in the case, and which they thought were likely to be newsworthy. I am not going to say here what they were, though they were splashed all over the front page of The Guardian of 7^th December 2004 in a report of the first half day's proceedings on the present application. I will say that the facts occupied about one page of a 53-page skeleton. I would agree with The Guardian journalists that they were potentially newsworthy, but they were of no real significance to the issues in the case. At the trial (before it was settled), these particular facts were hardly referred to, and no significant points were made about them. However, The Guardian journalists (not having been present for most of the trial) would not have known whether the particular facts attracted any attention or not.

11. The Guardian still pursues its application for the documents identified in the application notice, or more exactly (as I will explain) for most of them, although it seems to me, looking at the newspaper of 7^th December, that The Guardian has in essence already published its story based on the items taken from Mr. Chan's skeleton argument. Personally I doubt that the documents which it still wants will add much, but it is nevertheless my duty to consider and to rule upon the application.

Some Observations on the Detailed Content of the Application Notice

12. I have points to make both about the legal grounds asserted in the application notice as justifications for the order sought, and about the particular documents, inspection and copying of which are requested. As respects the legal grounds, The Guardian claimed in the application notice that it was entitled to what it applies for on three different bases: (a) under the Civil Procedure Rules, Rule 32.13; (b) under the Civil Procedure Rules, Rule 5.4(5)(b); (c) under the court's inherent jurisdiction. I interpolate a point here. The notice specifically referred to the Civil Procedure Rules 5.4(2)(c). In fact, that particular paragraph has very recently been replaced and the paragraph presently in point is Rule 5.4(5)(b). That explains why the paragraph to which I have just referred is not in fact the same as the one in the application notice.

13. Thus in the notice The Guardian was advancing three different alleged entitlements. However, in the course of the hearing before me Mr. Hudson (for The Guardian) said that, while not conceding that The Guardian did not have the entitlements which it identified in (a) and (c), he was content to rely solely on (b), that is on Rule 5.4(5)(b). I do nevertheless wish to refer briefly to (a) and (c).

14. As regards (a) the Civil Procedure Rules, Rule 32.13(1) provides as follows:

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

15. The witness statements which The Guardian wants to inspect and copy did stand as evidence in chief, but the obvious point is that under Rule 32.13(1) they are only open to inspection during the course of the trial. The trial is now over. It is worth mentioning in this context that for a short time Rule 32.13(1) was worded differently and read:

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

That wording, of course, would suggest that what had to happen during the course of the trial was the direction of the court. The present wording seems to me clearly to indicate that what has to happen during the course of the trial is the inspection of the witness statement. Mr. Hudson says that The Guardian does not concede that the present rule 32.13(1) cannot authorise inspection of a witness statement after the trial, but I do not see how that can be a tenable reading of the paragraph. It is true that there is a sentence in the White Book Note which reads:

"Presumably, on the application of an interested person, the court would have the power to direct that statements should be open to inspection beyond the end of the trial."

All that I can say is that, if the editors who wrote the note considered that what they had written there is a tenable reading of Rule 32.13(1), I cannot agree. They may, however, have in mind something to the effect that, although Rule 32.13(1) does not empower the court to direct that witness statements should be open to inspection beyond the end of the trial, there may be other powers under which the court may give such a direction. I would certainly not disagree with that and, indeed, the decision to which I am going to come is an instance of precisely what I have just said.

16. As regards the court's inherent jurisdiction, Mr. Hudson, if I understood correctly, said that it was hard to see the inherent jurisdiction taking the matter any further than Rule 5.4, so he was content to rely solely on Rule 5.4. I accept that the court has an inherent jurisdiction but I think that my feeling about it is similar to Mr. Hudson's. Where there are two specific provisions identifying circumstances in which the court can order disclosure of documents but neither applies in a particular case, I find it very hard to imagine myself nevertheless invoking an inherent jurisdiction (the limits of which are nowhere set out with precision) in order to direct disclosure after all. The application is therefore based solely on Rule 5.4, and in particular on sub-paragraph (5)(b) of Rule 5.4. I will read the paragraph. In order for the ambit of sub-paragraph (5)(b) to be clear, I need also to read the whole of Rule 5.4(5) including sub-paragraph (a) as well as sub-paragraph (b), but I will omit words which are irrelevant in this case.

"5.4(4) A party to proceedings may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party or communication between the court and a party or another person.

(5) Any other person [i.e. any person other than a party to proceedings] may -

(a) unless the court orders otherwise, obtain from the records of the court a copy of –

(i) a claim form …..

(ii) a judgment or order ….;

(b) if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person."

17. In this case The Guardian is not a party to the proceedings, so Rule 5.4(4) does not apply. As respects Rule 5.4(5), none of the documents which The Guardian wants comes within sub-paragraph (a): The Guardian has not applied to inspect the claim form or any judgment or order. Therefore the documents have to come within sub-paragraph (b), or they cannot be inspected under Rule 5.4(5). Not all of them come within sub-paragraph (b). To be within that sub-paragraph they have to be documents which can be obtained "from the records of the court". In this case that means in practice that they have to be in the court file of the Chan v. Alvis case.

18. Documents (a), (b) and (c) listed in the application notice are within the records of the court. They are the Particulars of Claim, the Defence and the Reply. The documents at (d) in the application notice are not within the records of the court. They are "Request and Replies to Requests for Further Information". The documents within (e) of the application notice are within the records of the court. They are the witness statements of six named witnesses. The documents within (f) are not. Although they are described as exhibits, the documents identified in paragraph (f) are in fact numbered pages in one of the many files of documents which were used in the trial. Those files were removed by the parties when the case settled. Thus they are not part of the records of the court.

19. The practical effect of the foregoing is as follows. The Guardian's application is that pursuant to the Civil Procedure Rules, Rule 5.4(5)(b), I should give permission for it to obtain from the records of the court copies of Mr. Chan's Particulars of Claim; of Alvis's Defence; of Mr. Chan's Reply; and of the witness statements of six named Alvis witnesses. There is an issue of whether I have jurisdiction to give permission at all, and, if I have, there is a further issue of whether or not I should exercise the discretion and give the permission. I will discuss the specific arguments later, but first I wish to set out some general principles.

Open Justice: Access of the Public and the Press to Documents used in Court, and the particular role of the Press

20. Open justice has long been a fundamental principle of English law. There is a strong presumption that cases should be heard in public and that decisions should be given in public. There is also a strong presumption that there should be as few impediments as possible to the reporting of cases, not just by specialist law reporters but also by the national and local press. All of this has been affirmed in cases of the highest authority, among which one constantly cited is the celebrated decision of the House of Lords in Scott v. Scott [1913] AC 417.

21. In the Civil Procedure Rules, Rule 39.2(1) provides that the general rule is that a hearing is to be in public. As regards court documents the rules do not lay down a general rule that the public have full access to court documents, but there are the provisions of Rules 5.4 and 32.13 (to which I have already referred). Further, the Practice Direction to Part 39 provides in paragraph 6.1 that the proceedings at any hearing of civil proceedings, either in the High Court or in a County Court, will be tape-recorded unless the judge directs otherwise and paragraph 6.3 of the Practice Direction provides that any party or person may require a transcript on payment of the authorised charges of the transcriber. The words "any person" do not limit the right to parties in the case. I add that the right to a transcript which paragraph 6.3 gives is an absolute one, for a judge's consent is not needed.

22. In general my impression, which I have not researched in depth, is that the Civil Procedure Rules (and the Rules of the Supreme Court before them do not, and did not, specifically distinguish between the public generally and the press. In terms of the Rules the press are just part of the public. However, in many cases the courts have recognised the reality that the press have a vital role to play in making the value of open justice real and significant. It is an excellent thing that any member of the public can walk into any courtroom, watch the proceedings and listen to what is said. But for the public as a whole to be informed about important or interesting matters which are going on in the courts the press is crucial. It is through the press identifying the newsworthy cases, keeping itself well informed about them and distilling them into stories or articles in the newspapers that the generality of the public secure the effects and, I trust, the benefits of open justice. I am not suggesting that everything is always peace and light between the judges and the press, but the judges know, and have often said, that the press is critically important to public awareness and scrutiny of the way in which justice is administered. Mr. Hudson in his skeleton cited a number of judicial observations to that effect. I will not repeat them here but I am very conscious of them. All of the foregoing has long been accepted in our courts. More recently it has been underlined by Articles of the European Convention on Human Rights and the jurisprudence arising from the Convention.

The Relevance of Increased Use of Written Materials in Court Proceedings

23. A particular development in our system of civil trials, which has had to be considered in the context of open justice and of informed publicity for court proceedings, is the trend for a lot of material which the judge considers to be placed before him in written form, for him to read it all and take it all into account, but for much of it not to be read out aloud in court. So far as the present case is concerned, this applies with particular force to witness statements which stand as evidence in chief. The six witness statements which The Guardian wishes to see were not read out in court, but I read them. In the usual way the witnesses who gave their evidence in person confirmed that the contents of their statements were true. Two of the witness statements were tendered under the Civil Evidence Act so the witnesses did not attend in person. Nevertheless the contents of their statements were evidence in the case and I read them.

24. Several of the recent cases which have considered issues similar to the issues in this case have made the point that members of the public should not, by reason of the modern practice, lose the ability to know the contents of a witness's evidence in chief, which they would have known under the earlier practice when the evidence in chief was given orally: see Lord Bingham CJ in SmithKline Beecham Biologicals SA v. Connaught Laboratories Inc. [1999] 4 All ER 498 at 511-512, and Lord Woolf, MR in Barings Plc v. Coopers & Lybrand [2000] 1 WLR 2353 at 2364-5. I quote one paragraph from the latter case:

"As a matter of basic principle the starting point should be that practices adopted by the courts and parties to ensure the efficient resolution of litigation should not be allowed to adversely affect the ability of the public to know what is happening in the course of the proceedings."

Authorities generally

25. I was referred to several other cases which were similar to, or had affinities to, this case. I will not review them all here though I will refer to some of them on particular issues as this judgment progresses. Some of them arose under the former Rules of the Supreme Court, whereas of course this case arises under the Civil Procedure Rules. Some of the cases (like this one) are applications by non-parties to a case to have access to some of the documents in it. Some arise against the background that documents produced by a party on disclosure are confidential until they are read in court, but once they are read in court in general they enter the public domain and lose their confidentiality unless the court directs otherwise. See Civil Procedure Rules, Rule 31.22, substantially reproducing the effect of the former Rules of the Supreme Court, Order 24, rule 24(a).

26. The detailed issues which have arisen in the cases have varied, but there are some underlying values which tend to be relevant in all of them. It is worth noting that in virtually all of the cases the final decision has been that the material concerned, whether witness statements, pleadings, skeleton arguments, disclosed documents or other similar items, should be disclosed to the person seeking access to it. An exception has been the Court of Appeal decision in Lilly Icos Ltd. v. Pfizer Ltd.(No. 2) [2002] EWCA Civ 2, [2002 1 WLR 2253, but that was a patent case where strong considerations of commercial confidentiality applied. Buxton LJ specifically said that particular considerations applied in patents cases: see p. 2262.

27. It is however instructive to note a number of general principles which Buxton LJ set out in paragraph 25 of his judgment, from which I will quote some extracts.

"The court should start from the principle that very good reasons are required for departing from the normal rule of publicity……"

"The court should start from the assumption that all documents in the case are necessary and relevant for that purpose, and should not accede to general arguments that it would be possible, or substantially possible, to understand the trial and judge the judge without access to a particular document….."

"Simple assertions of confidentiality and of the damage that will be done by publication, even if supported by both parties, should not prevail. The court will require specific reasons why a party would be damaged by the publication of a document….."

Discussion and Analysis

28. A threshold question is whether I have jurisdiction at all to make an order for disclosure under Rule 5.4 now that the Chan v. Alvis case is over. Rule 5.4(5)(b) only applies if the court gives permission. Mr. Ritchie submits that "the court" must mean only the court seised of the underlying case. That is, so far as this application is concerned, the court seised of the case between Mr. Chan and Alvis. But he points out that that case is over. Therefore he says that, for the purposes of The Guardian's application made now, "the court" does not exist, and it is impossible for permission to be given. I do not agree. The case of Chan v. Alvis was in the High Court and, although the case itself is over, the High Court still exists and in my view is "the court" referred to in the rule. The rule is about obtaining documents from "the records of the court". The High Court still has the records of Chan v. Alvis in the form of the court file. In my judgment an application can still be made.

29. I note that in two High Court cases orders have been made for the disclosure under Rule 5.4 of documents on the court files of cases which had come to an end. No suggestion was made that no jurisdiction to make such orders existed: see The Law Debenture Trust Corporation (Channel Islands) Ltd. v. Lexington Insurance Co. [2003] EWHC 2297 (Comm) and Dian AO v. Davis Frankel & Mead [2004] EWHC 2662.

30. Accordingly, on the basis that I have jurisdiction to give the permission requested, the question is whether I should exercise the power and give it. I have concluded that I should. A number of factors have influenced me. The general tenor of the cases is in favour of disclosure to the public of materials which, in proceedings in open court, have as it is sometimes put "entered into the public domain". The public includes the press and in many respects is effectively represented by the press, even if judges have on occasions become restive about some of the things which newspapers do. As to "the public domain", see e.g. observations of Lord Woolf, MR in Barings v. Coopers & Lybrand (supra) at paragraph 52.

31. On the more general principle that the courts favour disclosure rather than the withholding of materials if the materials have featured in proceedings in open court, I refer again to Buxton LJ in Lilly Icos. I will not repeat the first two passages which I quoted earlier but they are highly pertinent. I also refer to the judgment of Potter LJ in Gio Personal Investment Services Ltd. v. Liverpool and London Steamship Protection and Indemnity Association Ltd. [1999] 1 WLR 984, and especially to this sentence at page 993:

"Thus, while the parties to an action have free access to affidavits and other documents filed in the action, a member of the public requires leave to obtain such access which, no doubt, will be readily given if the affidavit or other document has been read in open court."

32. The reference to documents which have been read in open court must, in my view, be regarded as covering the pleadings, and also witness statements which were confirmed in general terms by their makers and which stood as evidence in chief. In Chan v. Alvis I had read all those documents and it should not make any difference that, following modern practice, I did so privately rather than having them laboriously read out to me verbatim in the courtroom. Potter LJ's sentence was specifically prompted by a provision in the former Rules of the Supreme Court which has not been exactly reproduced in the Civil Procedure Rules. However, the principle and policy behind what the Lord Justice said seems to me to be equally applicable to the present rule 5.4 of the Civil Procedure Rules.

33. If I may return briefly to Buxton LJ in Lilly Icos, the third passage which I quoted earlier was this:

"Simple assertions of confidentiality and of the damage that will be done by publication, even if supported by both parties, should not prevail. The court will require specific reasons why a party would be damaged by the publication of a document."

34. In the present case there is no evidence from Alvis that it will suffer any particular damage if The Guardian obtains the documents which it wants to see. I am sure that Alvis, which certainly did not want to be sued by Mr. Chan and which has now settled the case, would much prefer it if The Guardian was not taking the interest which it is. Imagining myself in the position of Alvis, I believe that I would be unhappy about this application. However, the proceedings between Alvis and Mr. Chan were not a private arbitration. They were proceedings in open court, and unwelcome publicity for a defendant, including a successful defendant, is not uncommonly a consequence of such proceedings. In any case, The Guardian already has Mr. Chan's skeleton. In its edition of 7^th December it has essentially reproduced the particular material which it saw in the skeleton and which attracted its interest.

35. A further factor relevant to the witness statements is this. If, instead of my having read them privately, their contents had been put in evidence in extenso by oral question and answer in court, there would have been a transcript. The Guardian would have had an absolute right, upon payment of the authorised charges, to obtain a copy of the transcript: see paras. 6.1 and 6.3 of the Practice Direction to the CPR, referred to earlier in this judgment. Therefore The Guardian would have been able to see the contents of the evidence in chief placed before the court whether Alvis liked it or not. It seems to me undesirable in principle that The Guardian should be deprived of that opportunity by the modern practice whereby witness statements are not gone through in extenso but are placed in evidence before the court nevertheless. That seems to me to be a strong reason for me to exercise my discretion in the way that The Guardian requests. Mr. Ritchie has referred me to a passage in Potter LJ's judgment in the Gio case which Mr. Ritchie says overcomes this point -- see page 995, letters C-D -- but I am still influenced by the point notwithstanding that passage.

36. Mr. Ritchie has of course put a number of other arguments to me in opposition to The Guardian's application and I will describe and comment on them. He says, and I agree, that in many cases and in non-judicial writings, the principle of open justice has been supported primarily on the ground that it serves a public interest in that it operates as a form of scrutiny of how the judicial system operates. In a passage from Buxton LJ's judgment in Lilly Icos which I have not quoted yet, he writes this:

"…. as Lord Diplock put it in Home Office v. Harman [1983] 1 AC 280, 303, citing both Jeremy Bentham and Lord Shaw of Dunfermline in Scott v. Scott [1913] AC 417, 477: 'Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial.'"

The cases also refer to the ability of the press to provide fair and accurate reports of court proceedings. That is another important purpose which the principle of open justice is intended to serve.

37. Mr. Ritchie says that in this case The Guardian does not want to see the documents which it requests in order to place the judicial system under scrutiny, or to keep it under scrutiny. Nor does The Guardian want to publish a fair and accurate report of the case between Mr. Chan and Alvis down to the time that it was settled. What it wants is to explore the newsworthy story which its reporters perceived from some of the contents of Mr. Chan's skeleton: a story which was of little or no relevance to Mr. Chan's claim or to Alvis's defence. I repeat the point that Mr. Chan was claiming against Alvis that he was entitled to a commission. Mr. Ritchie says that The Guardian is manifestly not interested in the ins and outs of whether Mr. Chan may or may not have been entitled to his commission.

38. Factually I agree with what Mr. Ritchie says in those respects. I also agree with him that The Guardian over-egged the pudding by saying in its application notice that it wished to inspect and copy the documents "because GNL wished to prepare a fair and accurate report of the proceedings". In my judgment that was not the real reason. Mr. Evans' email to my clerk indicated what the real reason was. So did his letter a few days earlier to Alvis's parent company. However, I do not think that I should refuse the order simply because the reason which The Guardian expressed in the application notice can be shown not to give an accurate impression.

39. Moore-Bick J in the Dian AO case at paragraph 31 has noted that doing justice in public can have consequences which go beyond its primary objects:

"Although….. one consequence of observing the principle of open justice is that those who are present at a hearing may obtain access to information that they may be able to use to their advantage in other contexts, that is simply a consequence of doing justice in public. It is not one of its primary objects."

40. The judge in that passage referred to "those who are present at a hearing". However, he plainly had in mind also those who were not present at the hearing but are able to obtain information about what happened at the hearing by taking advantage of the avenues which the law makes available. That is precisely what happened in the Dian AO case itself. In that case Moore-Bick J made an order under the then Rule 5.4(2) – essentially the same as the present Rule 5.4(5)(b) – for a non-party to a case to be given access to certain of the documents in the court file. The case had been settled some years previously. The non-party did not want the documents out of a desire to scrutinise justice or in order to give a fair and accurate report of the earlier case. It wanted access to them because it was itself involved in current litigation and it thought it possible that the documents from the earlier case, in which it had not been involved, could be useful to it in the current case, in which it was involved. The judge was of the opinion that the applicant did have "a legitimate interest in obtaining access to documents on the court record in so far as they contain information that may have a direct bearing on issues that arise in the litigation in the Caribbean". I note that in expanding on what he says there he adds this:

"Moreover, I think that in the case of documents that were read by the court as part of the decision-making process the court ought generally to lean in favour of allowing access in accordance with the principles of open justice as currently understood ….."

41. The Law Debenture v. Lexington case (supra) was similar, in that the party applying to see documents from an earlier case wanted to inspect them in connection with a current case in which it was involved. Colman J said in paragraph 13 that the applicant "has an entirely legitimate interest in inspecting the pleadings".

42. In this case why should it not be said that The Guardian has an entirely legitimate interest in inspecting the pleadings and witness statements in Chan v. Alvis? The nature of its interest is not related to other legal proceedings in which it is involved, but it is very much related to the core of its business and, as I am sure its editor and reporters would say, the purpose of its existence. The Guardian is a newspaper and a serious newspaper. It publishes stories which it believes to be of interest to its readers and which, in some cases, it believes could raise serious issues of public concern. Its reporters consider that, through Mr. Chan's skeleton, they have discovered such a story, and they wish to see whether there is more relevant material in documents which passed into the public domain through proceedings in open court. It is not for me to second-guess the reporters on whether the story really is interesting or whether it really does raise serious issues. If a litigant in current proceedings can see identified documents from an earlier court file because they may bear on his current litigation, then it appears to me that a serious newspaper should be able to see identified documents from an earlier court file because they may bear on a current story or article which it is interested in publishing.

43. A different point which Mr. Ritchie makes is that, by the time that The Guardian's application was made, the Chan v. Alvis case was over. If the application had been made under the Civil Procedure Rules, Rule 32.13, it would have failed on that ground. It is argued, partly by analogy with Rule 32.13, that the court either cannot or should not exercise its jurisdiction under Rule 5.4 if the case is already over. I accept that the timing of the application can be relevant to whether the court should exercise its discretion, but in this case considerations of timing do not deflect me from my conclusion. Unless Moore-Bick J was wrong in Dian AO, which I do not believe, there is no absolute rule that a Rule 5.4 application to inspect documents in a case's court file must be made while the case is still in progress. Certainly there is nothing in the wording of Rule 5.4 to suggest that that is so.

44. If it becomes a matter of whether the discretion is to be exercised under the rule, I can see that, if an application was made by a newspaper to inspect the court file of an old and stale case, the court might be inclined to refuse. But this case is not like that. The Guardian was taking an interest in Chan v. Alvis while the case was in progress. A reporter attended on 1^st November expecting to hear the evidence of an important Alvis witness. It was only then that The Guardian learned that the case had been settled. The next day Mr. Evans wrote to Alvis's parent company, and only a week after he received a reply he was in contact with my clerk. I do not think that The Guardian can be accused of any form of unreasonable delay in getting this application on foot.

45. Mr. Ritchie has made the point that The Guardian did not have a reporter attending the trial throughout. That is true, but in my view it would be unreasonable for me to refuse to give to The Guardian the order which it seeks on that account. There are a great many courts sitting every day in the Royal Courts of Justice alone, and there are vastly more around the country. A newspaper cannot realistically be expected to have reporters present at all times in all cases in which it is taking an interest. In any case, even if The Guardian had had a reporter present throughout Chan v. Alvis, it would have made no difference. The reporter would have left court when I rose on Thursday 28^th October, and would have come back for the resumption of the trial, as he thought, on Monday, 1^st November, only to be told that the case had been settled. The fact that The Guardian did not have a reporter permanently in court does not change my view of the present application. Observations in some cases about how members of the public sitting in court should be able to know what is happening have to be read with realistic qualifications for the particular circumstances of the press.

Conclusion

46. For the foregoing reasons, despite Mr. Ritchie's forceful and clearly explained opposition, I will make the order which the Guardian requests in so far as it relates to categories (a), (b), (c) and (e) set out in its Application Notice.

MR. HUDSON: My Lord, obviously The Guardian are grateful not only for the order but for your Lordship's judgment. It seems to me that the only outstanding matter from my side is relating to costs.

MR. JUSTICE PARK: Yes, and we might discuss the practicalities of how it is done.

MR. HUDSON: Yes, of how inspection and copying is done.

MR. JUSTICE PARK: Yes. What do you say about costs?

MR. HUDSON: It is a very simple submission. I say costs should, in the usual way, be paid by Alvis to The Guardian. There has been a sustained opposition to this application. It has occupied a considerable amount of time. We say that in those circumstances Alvis should pay our costs.

MR. JUSTICE PARK: That is a question of principle. Would you oppose that, Mr. Ritchie?

MR. RITCHIE: My Lord, I do not oppose costs in principle. I just want to clarify your Lordship's order. I think it follows from the judgment that when you say "I will make the order which The Guardian requests", that is for categories (a), (b), (c) and (e)?

MR. JUSTICE PARK: Thank you, yes. The order which The Guardian requested as it turned out to be. Thank you for that.

MR. RITCHIE: I am grateful, my Lord.

MR. JUSTICE PARK: In relation to costs I will direct that Alvis pay The Guardian's costs on a standard basis.

MR RITCHIE: I was merely coming then to the fact that as a result of that order they did not in fact pursue all the categories of documentation. My primary stance is that they should get 70% of their costs.

MR. JUSTICE PARK: Oh, I see.

MR. RITCHIE: Reflecting the overall balance of the success of the application.

MR. JUSTICE PARK: Any comment on that, Mr. Hudson?

MR HUDSON: My Lord, I do. We have been 100% successful. As soon as it became apparent to us that certain documents were not on the court file, we made it clear to the court that we did not pursue that part of the application.

MR. JUSTICE PARK: Yes, we had to drag you there kicking and screaming a bit before you were willing to go along with it but in the end you did.

MR. HUDSON: My Lord, we did. Also it would have been open to Alvis at an early stage to indicate to us their understanding, if they had had one at that stage, that those documents simply were not in the court file. They clearly had at some stage undertaken that exercise. My learned friend, of course, who was involved in the case and very familiar with it, did not do so. One can understand why, in one sense, they have played their cards very close to their chest, but they have never until it was raised before your Lordship said to us, "Well, the request for further information will not be on the court record because it was not filed". Nor did they explain to us until it was raised directly before your Lordship what the (f) references related to and why they would not be on the court record.

We say, first, the application has in reality been 100% successful. Secondly, to the extent that that part of the application was not pursued, it occupied a minimal amount of time and we would say that it really is not appropriate in those circumstances to award less than 100% of costs, but obviously on the standard scale.

MR. JUSTICE PARK: Thank you. Mr. Ritchie, I am of the opinion that in all substantial respects that matter The Guardian has succeeded here. I do not think it would be appropriate for me to start shading down the costs. I am going to direct that Alvis should pay The Guardian's costs, to be determined by detailed assessment in the usual way on the standard basis.

MR. HUDSON: Perhaps the order could be "subject to detailed assessment if not agreed". I have already had an initial discussion with my learned friend and it may well be it can be agreed.

MR. JUSTICE PARK: Perhaps you will be working up some sort of draft Minute of Order. You could put something in to that effect. I am just wondering what happens in practice. I have never had precisely this point before. The Order is that you can inspect and take copies of documents on the court file. That is one way of doing it. I do not know whether Alvis has any view, subject to any appeal which I imagine Mr. Ritchie may want to say something about in a moment. A way to cut the hassle here would be for Alvis just to provide copies itself.

MR. RITCHIE: My Lord, I am looking behind me and I am getting nods. It does seem a more practical way forward.

MR. JUSTICE PARK: Yes. Perhaps an order might say something to the effect that upon Alvis undertaking that instead of the copies being obtained from the records of the court Alvis will provide copies, no further order is made. I am not sure that that is quite right but I am sure between you you can think about it and come up with an appropriately constructed order.

MR. HUDSON: My Lord, I am aware that my instructing solicitor would like to mention something to me. I wonder if I might just take instructions?

MR. JUSTICE PARK: Yes, of course.

MR. RITCHIE: While my learned friend is doing that, I can indicate on behalf of Alvis that we are not seeking an order for permission to appeal.

MR. JUSTICE PARK: All right, thanks very much indeed. Did you pick that up, Mr. Hudson?

MR. HUDSON: No, I am afraid I did not hear my learned friend.

MR. JUSTICE PARK: No application for permission to appeal.

MR. HUDSON: I am grateful. My Lord, the only matter my instructing solicitor raises is the question of timing. The journalist has, as your Lordship is aware, been present in court and would really like to obtain copies, ideally today. I do not know whether Alvis have them with them today, or could provide them today. If not, it would really just simply be a copying process.

MR. JUSTICE PARK: Yes, I can quite understand why.

MR. HUDSON: Particularly if there is going to be no appeal.

MR. JUSTICE PARK: What was on the front page and page 7 yesterday disappeared to the lower half of page 5 today, I noticed.

MR. RITCHIE: I was still pleased to be anywhere!

MR. JUSTICE PARK: Yes, you were the star of yesterday's piece. The Guardian wonders if Alvis would be able to provide copies today.

MR. RITCHIE: My Lord, yes. I am looking behind me and I believe that that is possible. If there is an intention to run a story tomorrow, I do not know whether there is a copy deadline. Simply as a matter of practicality, it is plainly not going to be possible to provide it immediately. It is going to take a little time to select the relevant documents.

MR. JUSTICE PARK: I do not think we can do more. I suspect that the small print of a Minute of Order may be affected a little bit by what the parties arrange between themselves.

MR. RITCHIE: I have heard from behind me four o'clock. I am hoping that we can get pretty close to that and maybe able to meet it.

MR. HUDSON: Obviously, as my learned friend indicated yesterday, we assumed they had all the relevant documents with them. It may have just been simply a reference to the (f) documents; I do not know. If they are in court -----

MR. JUSTICE PARK: I have the court file here. I think if I wanted to direct the court staff to make all these copies, they will have other things that they are busy on.

MR. HUDSON: Absolutely. It is really just the sooner it can be done, the better really.

MR. RITCHIE: My Lord, we all understand that and are comfortable with that.

MR. JUSTICE PARK: Can I assume that I might be supplied at some stage with a Draft Minute of Order which will cover everything. I will have a look at it and then sign where marked in pencil.

MR. HUDSON: My Lord, yes.

MR. JUSTICE PARK: I suspect there is nothing further for us to do now, is there?

MR. RITCHIE: My Lord, I am very grateful for you having accommodated the court to my requirements.

MR. JUSTICE PARK: That is all right. Can I just repeat, I am very grateful to both parties and obviously to Mr. Hudson and Mr. Ritchie for their arguments, which were very helpful and well and absolutely fairly presented. It is an interested point of a novel nature to me and I got a great deal of assistance in dealing with it. I hope it was helpful that I managed to get a judgment written in time to be delivered this morning.

MR. RITCHIE: My Lord, just in case the case is of any wider interest (either in the press or in the legal press) is it your Lordship's intention that there will be an approved transcript?

MR. JUSTICE PARK: I would have expected so. That is the normal thing. I am not sure whether I need specifically to say that. My experience is that a transcript just tends to arrive. I do not think I would myself be asking to be provided with a transcript, but on past form I imagine I will get one, and when I get it I will edit it. I imagine it was fairly obvious to everyone that what I was mostly reading through had been written at considerable haste, some of it within less than half an hour of my giving judgment this morning. There will be a fair bit of editing which I think I want to make, but of course the editing will only go to the style and expression and will not in any way change the substance. Thank you very much. Thank you very much.

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