HIGH COURT: concern that retrospective use of rules will shed light on sensitive documents

The Law Society obtained an unprecedented injunction last week in a bid to prevent new rules that will open up public access to court files from applying retrospectively.


The injunction against the Courts Service will remain in place until a High Court hearing this week, which will determine whether the rules should be retrospective. The Law Society's action is being resisted by an alliance of newspapers and broadcasters.


The new court rule, which came into force on 2 October, extends public and press access beyond the basic claim form to the particulars of claim and defence arguments. However, the Law Society has objected to the fact that the rule will apply not just to claims submitted after 2 October, but also previous cases - where parties would have filed their defence arguments in the belief that these would not be accessible to the public until they were read out in open court.


A temporary injunction has been granted to prevent this aspect of the rule from coming into force until the issue is settled in the High Court.


Law Society chief executive Des Hudson said that while it supported public access to court statements, the Society's members were concerned that this could apply to long-closed cases. He added: 'The Courts Service reversed its position on the interpretation of the rule, putting many clients in the unreasonable position of having to apply to court at very short notice if they wanted statements to remain confidential.'


John Trotter, commercial litigation partner at City firm Lovells, said the rule could lead to sensitive information from cases that have already settled being made public, against the parties' wishes.


He said: 'Retrospective rules changes are not the way to go, because of natural justice. You might have a libel case that settled, where some very salacious arguments were made in a "justification" defence. It may be that a defence that was not intended to see the light of day, or at least only in a controlled way in the courtroom, would become public.'


Anthony Maton, executive committee member of the London Solicitors Litigation Association, said the rules would make it easier for the public to see both sides of the story. But he added: 'It is unfair that the rules are retrospective. It is one thing drafting a defence knowing it is going to be submitted but will remain confidential - it is another knowing that there will be public access.'


Gill Phillips, in-house lawyer at The Times newspaper, which is challenging the injunction, said the Law Society had been consulted on the rule changes and that it was inappropriate for it to have sought an injunction at this stage.


A spokeswoman for the Courts Service was unable to comment.


Rachel Rothwell