A default position that all court hearings should be conducted in public, and parties and witnesses named, is under consideration by the Civil Procedure Rule Committee (CPRC) as part of a push to emphasise the importance of open justice, it has emerged.
A rewrite of CPR 39 and its practice directions may also provide that parties cannot agree to waive the right of the public to open justice, and bring an end to unilateral communications with the court.
The CPRC set up an open justice subcommittee in June 2017 to review the rules so that they reflected “more properly” the principles of open justice.
In a preliminary paper to last month’s meeting of the CPRC, the subcommittee – chaired by Mr Justice Kerr – said: “We believe consideration should be given to whether to include in CPR 39.2 a provision explicitly stating the default position that hearings are conducted in public, and parties and witnesses named, unless an exception is made on the specific grounds provided for and is found justified on the facts.
“Although this is already implicit in CPR 39.2 and reflects the substantive law, we believe it may assist parties, advisers and witnesses if it is made explicit.”
It said derogations from the general principle could only be justified in exceptional circumstances, when they were strictly necessary as measures to secure the proper administration of justice. Derogations should, where justified, be no more than strictly necessary to achieve their purpose.
Other issues included the “consent fallacy”, which the subcommittee described as the “common misconception that the parties can agree to bestow anonymity on a witness or party, or even agree that the hearing of their case should be held in private”.
It said that even where they understood that this was not the law, parties may start with an expectation that the judge would accept consent of the parties as in practice bound to override the public right to a hearing in open court.
“We think changes to CPR 39.2 could help to promote awareness that the parties cannot waive the right of the public to open justice.”
The subcommittee identified a “disturbing increase in parties communicating with the court (often by email) without copying the other party, and without good reason not to do so”.
It said: “This is a serious denial of open justice of a particular kind; it is self-evidently objectionable, other than in exceptional cases, for a party to engage in a private dialogue with the court behind the back of the other party.”
The subcommittee said it was considering whether the time has come to include an explicit obligation in the CPR to copy the other side when communicating with the court, and a separate obligation to confirm to the court that this has been done.
There would need to be a “compelling justification” to exclude the other party from the communication – such as at an early stage in a without-notice freezing order or search and seize application) – in which event the reason should be stated in the communication.
“We will need to consider also how to deal with telephone calls by a party to the court, which by their nature are normally unilateral not bilateral communications.”
Sanctions for breach of the proposed obligations could include disregard of the communication, sending it back, wasted costs or, “in extreme cases”, striking out.
The subcommittee also discussed what a court should do to allow the public into court – existing case law from 1974 holds that there is no general duty on the court to take reasonable steps to accommodate the public.
“We propose to consider whether some provision is needed to deal with, for example, a case raising acute local controversy, listed to be tried in a very small court with room for only a small proportion of those wishing for good and legitimate reasons to attend the hearing,” the subcommittee said.
“We appreciate that this has resource implications and space cannot be unlimited; but it is difficult to say that justice is done openly if the court is in reality closed to all but a few.”
Other issues highlighted by the committee included a procedure for determining open justice issues – particularly for unlisted hearings, such as those by telephone, public access to court documents, and the recording and transcribing of proceedings, especially where litigants in person are involved.
The CPRC said it was content with the progress and direction of travel of the subcommittee. A consultation paper will be published next year.