Earlier this year, a new two-year pilot in the form of Practice Direction 51ZH (PD) was introduced in the Commercial Court, the London Circuit Commercial Court and the Financial List. This pilot is perhaps more helpfully described as the PD for Access to Public Domain Documents. The PD imposes a new requirement on solicitors to file certain documents used in court proceedings, which were historically unavailable to the public, on the public-facing electronic court file. This requirement can, however, be modified by the court. In Various Claimants v Entain Plc, Mr Justice Trower has given what is thought to be the first judicial consideration of when such modifications may be appropriate.
The aim of the PD is no less than to further the principle of open justice and to close what Lady Justice Cockerill – principal author of the PD – has identified as a ‘transparency gap’. With modern civil litigation becoming increasingly document-heavy, the PD aims to strengthen the judicial maxim that ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’.
That seminal declaration as it relates to the English judicial system – first espoused by Lord Hewart CJ in R v Sussex Magistrates, Ex p McCarthy [1924] – was forcefully emphasised again by Baroness Hale in Cape Intermediate Holdings Ltd v Dring [2019], in explaining that the constitutional principle of open justice requires the public to scrutinise the way in which courts decide cases, understand the issues being determined and assess whether justice is being done.
PD51ZH gives practical effect to these principles by making certain documents – referred to as ‘Public Domain Documents’ – presumptively available where they are used or referred to at a public hearing. This includes skeleton arguments, written submissions, witness statements, affidavits and expert reports. Parties must file such documents on the public-facing CE-File system within the prescribed filing period, so that any person, including a non-party, may obtain copies without having to make a formal application to the court. However, access is not unlimited, and Dring made clear that the court has to carry out a fact-specific balancing exercise: ‘On the one hand will be the purpose of the open justice principle and the potential value of the information in question in advancing that purpose. On the other hand, will be any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others.’
To this end, PD51ZH provides that the court can make a filing modification order (FMO) which can, among other things, waive or restrict the filing requirement. The difficulty, and the significance of Entain, is that PD51ZH does not specify the factors the court must take into account when deciding whether to make an FMO.
It is perhaps unsurprising that the first judicial guidance on this topic arises in circumstances where major civil litigation is ongoing in parallel with related criminal proceedings. In broad terms, the claimants’ alleged historical misconduct relating to Entain’s Turkish business, misleading statements or omissions in market publications and prospectuses, and consequential shareholder losses. The aggregate claims, brought under sections 90 and 90A of the Financial Services and Markets Act 2000, are said to exceed £1.6bn. The detail of the securities claims was less important for present purposes than the existence of overlapping criminal proceedings concerning many of the same matters. That significant overlap was accepted by all parties. It was agreed that there was a material risk that the public disclosure of information contained in unredacted versions of the Public Domain Documents – required to be filed pursuant to PD51ZH – might compromise the fair conduct of the criminal proceedings. Consequently, there was no dispute that protective measures were required.
Trower J’s judgment on this point is a helpful practical illustration of an approach to the Dring balancing exercise, particularly in the context of parallel civil and criminal proceedings. Here, Trower J held that the starting point was that if the exercise by third parties of their rights under the PD increases the risk of information prejudicial to the fair conduct of the criminal proceedings leaking into the public domain, that should weigh heavily in the balance in favour of making an FMO. Trower J felt that: ‘In practice, this means that in circumstances in which there is substantial and significant overlap between the criminal proceedings and the shareholder proceedings, serious consideration must be given to restricting the unrestricted access which the public might otherwise enjoy.’
One possible form of an FMO contemplated by the PD is for the Public Domain Documents to be redacted in accordance with the directions of the court. Much of the argument in Entain, therefore, centred on an appropriate redaction process and who should be responsible for applying any redactions. Here, the court alighted on the problem that the parties in the civil proceedings were not parties in the criminal proceedings, and were therefore not well equipped to form an accurate view of what redactions were necessary. It was also recognised that it would not normally be the role of the CPS – the party bringing the application for an FMO – to act as gatekeeper for documents filed in associated civil proceedings.
The court therefore decided that the right approach would be to make an order waiving or restricting the filing requirement, while simultaneously exercising its discretion to make any other order as it thinks fit. Specifically here, to require the adoption of a placeholder process. The court directed that, in place of the Public Domain Documents, the parties must file a placeholder identifying the date and nature of the document, the hearing at which it was first used or referred to in public, and the party by whom it was filed. The placeholder must also draw attention to the right of any non-party to apply for access under PD 51ZH. If such an application is made, it must be notified to the CPS and the defendants in the criminal proceedings.
While PD51ZH has changed the mechanics of access, it has not fundamentally altered the balancing exercise the court will undertake. The court can and will take steps to protect the integrity of the judicial process.
Leigh Callaway is a partner at Fladgate and committee member of the London Solicitors Litigation Association
No comments yet