A local authority must cover the costs of redacting court documents which are being disclosed to a freelance journalist, the High Court has ruled.
In one of the first reported cases following last year’s Supreme Court ruling in Cape v Dring, Mrs Justice Roberts said her decision might have been different if Melanie Newman “had behind her the financial resources of a large media organisation such as the BBC or one of the major press organisations”.
The Supreme Court stressed the importance of open justice and said the ‘default position’ should be that the public had access to court documents.
Ns Newman sought disclosure of the court file and other materials relating to public law care proceedings brought by Southampton City Council, which eventually reached the Court of Appeal.
The journalist did not apply for permission to publish any of the material released to her, but only to use it as background. She accepted that, if she wanted to publish any of it, she would have to go back to the court.
Roberts J said she refused the application for disclosure of the entire court file on the basis that Ms Newman “should be permitted to have access to certain documents”, including expert reports, but certain aspects would need to be redacted as they involved a child.
The parties agreed that there should be no order for costs in relation to Ms Newman’s disclosure application. They did not agree on who should pay for redacting and copying the documents.
Roberts J said she had “considered carefully” the extent to which Southampton City Council had already incurred costs in relation to Ms Newman’s disclosure application.
“Ms Newman was represented throughout by her legal team on a pro bono basis. The local authority, on the other hand, has incurred substantial costs in relation to the application.”
The local authority estimated that it would take the solicitor who handled the case up to 10 hours to complete the redaction exercise, and it sought to recover its costs at an hourly rate of £95.
It also claimed the cost of copying and collating the redacted material – 283 pages and undertaken by an administrative assistant at £45 per hour.
The council was prepared to cap its claim at £1,200 including VAT.
Counsel for Ms Newman said she objected to meeting the costs of the redaction although she offered to meet the costs of the copying.
The judge said she had “taken well on board the financial impact on a local authority which currently has to juggle a significant number of calls on over-stretched resources”.
Roberts J said the local authority had incurred the costs of instructing leading and junior counsel and a “senior team manager” had attended the two-day disclosure hearing.
She ordered Ms Newman to pay the costs of the copying exercise limited to £45 per hour plus VAT, with no order in relation to the costs of the redaction exercise.
Based on the financial information the journalist provided, Roberts J said she was satisfied that a costs burden of £1,200 “would be very likely to result in her abandoning her request for the documents which I have allowed her to see”.
She went on: “I agree that a costs order against her in terms of the redaction exercise which I have required the local authority to undertake would place a disproportionate burden on her shoulders and is likely to render the whole exercise nugatory…
“I accept that I might have taken a different view were Ms Newman to have behind her the financial resources of a large media organisation such as the BBC or one of the major press organisations.”
Roberts J rejected Ms Newman’s application for permission to appeal her ruling on disclosure to the Court of Appeal.
“It seems to me that all three of the grounds relied on by Ms Newman are, in effect, part of the same challenge that I reached the wrong conclusion in terms of the ultimate balancing exercise.
“I am satisfied that, over the course of my judgment and from the foot of an holistic survey of the existing jurisprudence, I have conducted an appropriate and fact-specific balancing exercise which has informed the conclusions I have reached.”
Last month, we reported that the group whose bid to access a bundle from litigation involving an asbestos manufacturer led to the Cape ruling failed in its application for the documents.