In his latest speech in his role as chair of the judiciary’s transparency & open justice board Mr Justice Nicklin focused on access to documents. It is a subject of particular interest to a humble court reporter such as I because I spend a large proportion of my life asking for such documents.
Usually, it only takes a please and thank you. Regularly, it takes chasing. Documents forming part of the proceedings in open court should not need chasing.
A recent example takes us to the Royal Courts of Justice. I sat in on a costs hearing related to a trial which I covered many moons ago. As soon as I had a chance, I asked, as reporters normally do, for the skeleton arguments. Many references had been made to them. As well as asking in person, I emailed too. I am nothing if not helpful. I knew the case well, I could not see that there would be any issue in sharing them.
In his speech, Mr Justice Nicklin said: ‘Doing justice must always come first. The degree of openness achievable will vary with the nature of the work.’ But, as mentioned, I didn’t see the ‘degree of openness’ being something to argue over here.
One side gave me their document quickly. I could follow their references during the hearing. It was useful and I was appreciative. The other side took 24 hours to get back to me - before asking me what their opponents had done. I struggled to see the relevance. I could hear my mother’s voice asking if my friends jumped off a cliff, would I do so too. I refrained from asking the firm something similar.
Before I replied, I spoke to the judge who, when court was back in session, asked that the skeleton arguments be shared with the member of press. That took the judge less than five minutes, but it was still court time that should not have to be spent on my simple request. Interestingly, counsel for the side that had sent the email prompting all this said they were in the process of sending it. I always thought email was immediate, it is hardly something I would say had a process, but maybe the firm has a more laborious email system than what I am used to. I’m not here to judge, I’m just telling you what happened.
I replied to the firm explaining the judge’s request and within minutes, the document was with me. So why the chase? I have enough of that dating in London.
‘As I have observed judicially, skeleton arguments and trial witness statements are now among the most important documents in any case: without access to them, a hearing – or any transcript – may reveal only a fraction of the argument actually advanced,’ Mr Justice Nicklin said. ‘Open justice is a constitutional principle with two central purposes: scrutiny of judicial decision‑making, and public understanding of how justice operates. In modern civil justice, both purposes depend upon access to the written materials that constitute much of the proceeding.’
Read that as many times as you need to. Let it sink in.
It feels a good time to acknowledge the Court of Appeal’s great work in making documents available under a case’s livestream link. It is a wonderful thing. It also seems a good time to remind everyone of the Public Domains Documents’ pilot which started in the commercial court in January.
To give you the abridged version, if a document has been used or referred to in open court it has entered the public domain and access should be available through the public CE File portal. Documents referred to only in passing are not within the pilot's scope but documents such as skeleton arguments and relied upon written submissions are. The pilot does not mean that current routes of access such as documents being provided at hearings are now not in play, they are. The pilot is about improving openness, not closing off what is already in existence.
Optimist that I am, one day I believe that getting skeletons will be as easy as two recent cases: one where I was offered the documents before I had to ask (I steadied myself from the shock by holding onto the bench) and the other where both paper and electronic versions were provided within 10 minutes of asking. What a high that was.
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