Open justice and disclosure: lessons from Chodiev and others v Stein by Jamie Susskind

The principle of open justice is fundamental to the common law. It means that the legal process should be conducted in public and accessible to the public. This includes access not only to what is said and read out in open court, but also to evidence referred to or read by the judge as part of the decision-making process. This principle is reflected in CPR 31.22, which provides that:”(2) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where (a) the document has been read to or by the court, or referred to, at a hearing which has been held in public (author’s emphasis).”

Of course, the principle of open justice is not immutable. CPR 31.22(2) gives the court the power to make an order prohibiting or restricting the use of a document which has been read by or to the court, or referred to at a public hearing.

Ordinarily, it’s the party which has received disclosure of a particular document that wants to make further use of it; the disclosing party tries to stop such use. The opposite was the case in Chodiev and others v Stein: the defendant, who had received disclosure, asked the court to order that CPR 31.22(1)(a) should not apply in the ordinary way, and that documents referred to in open court should not become public.

The first notable feature of Leggatt J’s decision is the finding, albeit obiter, that there is no reason why the recipient of disclosure should not make such an application (after all, there are likely to be situations, perhaps like this one, where a party is disturbed to see sensitive documents disclosed to it which were obtained from a third party via an ex parte Norwich Pharmacal application). Leggatt J held that even if CPR 31.22 were limited only to the use of the disclosing party, the court would have inherent jurisdiction to make such an order anyway (see paragraph 16 of the judgment in A v British Broadcasting Corporation).

Less surprising is the fact that Mr Smith’s particular application failed. As described at paragraph 35, the mere fact that:

“…the documents are of a kind that the parties to them would generally regard as confidential and private is not… a sufficient reason for the court to impose on the use of the documents a restriction which would not otherwise exist.”

Attractiveness of parties’ positions

Practitioners will wish to take note of two further aspects of Leggatt J’s reasoning in Chodiev. The first is that the attractiveness or otherwise of a party’s position vis-à-vis the other party is unlikely to be determinative of issues surrounding open justice. The position was described as follows at paragraph 32:

“Having failed in their defence of the original claim, they went off to Cyprus and got hold of documents from Abacus which they then sought to use to mount an attack on the judgment and to argue that the judgment had been obtained by fraud. They obtained the documents in order to pursue that purpose. That attack has failed. Nevertheless, the claimants now say that they should be able to benefit from that failed attack by being allowed to use documents which were disclosed for the purpose of it for any other purpose that they choose and that they should be allowed to do so because they themselves have referred to the documents and referred the judge to the documents at a hearing in the proceedings which took place in public. There is, as it seems to me, a certain bootstraps element to their position.”

Notwithstanding this, Leggatt J reminded himself that “the principle of open justice does not exist for the benefit of the claimants, or of parties to the litigation; it exists in the public interest (author’s emphasis).” As such, any restriction on the use of documents which have been referred to in public has to be justified by reference to the public interest, and not to the merits of the case or the parties’ conduct.

Timing

The second aspect of interest is Leggatt J’s discussion of the proper timing of this kind of application. The applicant’s position was that, a year having passed since the hearing, anyone who was interested in finding out what had happened could get all that they reasonably needed to know from reading the judgment and there was no need to seek to inspect the underlying documents. Leggatt J rejected this argument, finding the very opposite (see paragraphs 38 and 39):

• First, he considered that if a party wishes the court to restrict the use of documents which are being or are about to be referred to at a hearing, then “that question should be addressed at the time so that everyone knows where they stand in relation to the use of the documents”.
• Second, in his view, it would have been wrong to give any encouragement to the making of applications a year after proceedings had closed, put on the basis that because the matter would then be historic it would be appropriate to introduce a restriction which had not previously been sought. In short, “the older and staler the information, the less reason there is, other things being equal, to impose any restriction on its use.”

If Leggatt J’s dictaare to be followed, then practitioners should be wary of waiting before applying for documents to remain private contrary to the general principle, or applying on an ad hoc basis during the hearing or after the event. It is properly a matter for the very beginning of trial.