Witness statements, expert exhibits and other documents essential to the understanding of proceedings in the Commercial Court will have to be made publicly available from October, the head of the court revealed last night. This will be done by adding them to the public-facing part of the CE File electronic filing and case management system, Mrs Justice Cockerill told the London Solicitors Litigation Association (LSLA).
The judge, who becomes Lady Justice Cockerill this year following her appointment to the Court of Appeal, was giving an update on the work of the judiciary's Transparency and Open Justice Board, set up by the lady chief justice last year. Its objectives include 'timely and effective access' to core documents. However a proposal last year to amend the Civil Procedure Rules on access by non-parties ran into opposition over concerns about confidentiality and cost.
The new plan, set out in a draft practice direction, will be simple, cheap, quick and risk free, Cockerill said. Subject to ministerial approval it will be piloted in the commercial court which she said has a 'sophisticated and engaged user profile'. Material covered includes the so-called Dring documents (after the landmark 2019 open justice ruling in Dring v Cape) as well as 'documents understood by the judge to be critical to the understanding of the hearing'. The rules apply to any Commercial Court hearing in public but not to cases involving litigants in person not on the CE File.
‘Genuinely confidential’ material will be redacted through a judge’s ‘file modification order’, which she said would be agreed in a ‘relatively informal process’. However judges 'are going to take some persuading that a document read out in court should be subjected to a modification order'.
Non-compliance would be dealt with by a court order, breach of which would be contempt.
The publication plan is likely to cause consternation in some quarters - especially as it will apply to witness statements already collected for cases coming to court after October. Another concern is the likely use of the new trove of court documents to train artificial intelligence systems.
However advocates for open justice welcomed the announcement. The plan is 'both carefully considered and significant', said Philip Gardner of City firm Peters & Peters. 'The Transparency and Open Justice Board have thought hard about how to achieve reform at proportionate cost and based on principle: public understanding of civil justice will benefit greatly.’
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