The Civil Procedure Rules Committee (CPRC) has backed rule changes to ensure that courts sit in public “irrespective of the parties’ consent” unless certain strict conditions are met.
The CPRC’s open justice subcommittee said there was no “right” to a private hearing, for example where personal finances were being discussed, and a “change of culture” was needed.
The subcommittee, chaired by Mr Justice Kerr, said members had “encountered quite frequently cases where the parties mistakenly believe they can agree that a hearing will be held in private” or that mutual consent would be a “sufficient reason”, without further consideration of the question.
The new rule 39.2 repeats the old general rule that a hearing is to be in public, but states that “a hearing may not be held in private, irrespective of the parties’ consent” unless certain conditions are met, such as a hearing involving matters relating to national security.
The subcommittee said that although the existing list of conditions was “sound”, the current wording might encourage the “mistaken view” that there was a “right” to a private hearing in certain circumstances, such as when personal finances were being discussed.
It made clear that meeting one of the conditions did not mean that the case was automatically heard in private, and privacy must be necessary to “secure the proper administration of justice”.
The new rule provides that where hearings are in public, courts must take “all reasonable steps” to ensure they are of an “open and public character”.
The subcommittee said it was also aware of a “disturbing increase” in parties communicating with the court, often by email, without copying the other party, and “without good reason” not to.
Members of the subcommittee were aware of “numerous cases” where parties had communicated with the court without alerting the other side.
Examples included cases being put back several hours or withdrawn from the list at the request of one party by telephone or email, orders being set aside “at the behest of one party”, and a witness order being granted to one party without the other, unrepresented party being informed.
To tackle this, a new rule 39.8 provides that communications between a party to proceedings and the court “must be disclosed to, and if in writing (whether in paper or electronic format), copied to, the other party or parties or their representatives”.
The new rule “applies to any communication in which any representation is made to the court on a matter of substance or procedure but does not apply to communications that are purely routine, uncontentious and administrative”.
A party is not required under the new rule to “disclose or copy a communication if there is (or are) a compelling reason (or reasons) for not doing so” provided the reason is clearly stated.
A written communication required to be copied to the other party or parties “must state on its face that it is being copied to that person or those persons, stating their identity and capacity”.
The subcommittee also added a new rule 39.9 on the recording and transcription of proceedings, which encourages judges to provide informal notes to litigants in person.
“At any hearing, whether in public or in private, the judge may give appropriate directions to assist a party, in particular one who is or has been or may become unrepresented, for the compilation and sharing of any note or other informal record of the proceedings made by another party or by the court.”
The subcommittee commented: “The quality of transcripts in recent years and the delays and expense involved in producing them have been such that an agreed and/or judicially approved note produced while the hearing is fresh in everyone’s mind, is likely to be of greater practical value to the parties (especially if unrepresented), the judge and an appellate court considering the matter soon after the hearing, than a costly perfected transcript which only becomes available months later.”
Introducing the paper at the CPRC’s December meeting – for which the papers have recently been published – Mr Justice Kerr said that he hoped the changes to part 39 and associated practice directions would go to consultation in the first half of this year.
The CPRC set up the subcommittee in June 2017 to review the rules so that they reflected “more properly” the principles of open justice, with the subcommittee issuing a preliminary paper last October.