If justice is to be done in public then why are court documents not accessible to the public? Parties have access to court documents filed in litigation in which they are involved, but non-parties to that litigation - or the general public - may have an interest in those same court documents and seek access to them.
In AIB v Tracey  IEHC 242 it was held that the court’s permission was not needed to release court documents (affidavits in this case) which were opened in court although not read verbatim. A document may be taken as being ‘opened’ in court where reference is made to it or where passages are read in full or in part. Where a judge indicates that he or she has read a document in preparation for court, it may also come within the meaning of being ‘opened’. Once documents have been opened, the requirement of Article 34.1 of the Constitution (that justice must be done in public) has been fulfilled and the documents are in the public domain – regardless of the content. In Tracey it was argued that the documents were defamatory to a non party to the litigation. Documents opened in court, or statements made in those documents, can be used in subsequent criminal proceedings on the authority of Kelly v Byrne  IEHC 450.
In 2010 when the Courts Service refused to continue providing access to internal court records in respect of unregistered judgments of the District and Circuit Courts, the company behind Stubbs Gazette sued claiming the denial of access breached the principle that justice be done in public. Stubbs lost the case. The High Court found that the Constitution provided access to the court process but not information generated by an administrative action performed after the public hearing had concluded.
In Lowry v Moriarty  IEHC 602 it was held that while the public were entitled to access material opened in court the same could not apply to documents not opened in court. This prohibition on accessing filed court documents is in contrast to other common law jurisdictions like the US and Australia where many court documents can be obtained online.
This year the Court of Appeal of England and Wales clarified the position thereafter overturning a decision to give non party access to the entirety of trial papers in a case which had settled before judgment. It was held that court documents read in open court or read by the judge were presumed to be accessible to non parties to the litigation. The general public would only be allowed to access documents falling outside the above parameters where ‘it is not possible for a reasonable observer to understand the trial evidence, arguments or issues without inspection of the documents in question’. (Cape Intermediate Holdings Ltd v Dring  EWCA Civ 1795)
In Ireland the landscape governing the disclosure of court documents may be about to tilt towards a more open system. One indication of this trend is the Supreme Court practice direction (SC15) stating that written submissions would be made available to the public, although redacted where necessary. For many years journalists relied on an ad hoc system of gaining access to documents through legal representatives and attending court sittings. The Courts Service have recently announced a new procedure where bona fide members of the press will be permitted to access court documents in civil and criminal matters. This is as part of sweeping reforms flowing from the Data Protection Act 2018. Guidelines on these new rights of access are expected soon. How they impact on the question of how the courts will share what it says in the papers with the general public remains to be seen.
First Published in Law Ireland in September 2018