Journalists should be provided with documents in employment tribunal cases even after judgment has been handed down, the Employment Appeal Tribunal has ruled in a significant decision on open justice.
The Guardian successfully argued that skeleton arguments, witness statements and a number of other documents referred to in an employment tribunal judgment involving allegations of breaches of anti-money laundering regulations by Swiss bank EFG should be provided to the media.
Judge James Tayler said the court ‘adopted far too narrow an approach to the open justice principle’, adding: ‘Material should be made available so that the judgment can be properly understood.’
The judge rejected the contention that locating and copying some of the documents sought would pose ‘real practical difficulty’ and incur ‘significant cost’.
‘The concerns that the employment tribunal raised of its own motion harked back to days where boxes of hardcopy documents would have to be obtained and then the relevant documents would need to be extracted and individually photocopied,’ Tayler said. ‘The judgment conjures up a picture of a solicitor’s office of the ‘70s.’
Tayler referred to the landmark Supreme Court ruling in Dring, in which Lady Hale said that the ‘increasing digitisation of court materials’ should make it easier for parties to provide documents to the media, adding: ‘That process has accelerated during the coronavirus pandemic.’
The judge also noted that the judgment in Dring stated that ‘the non-party who seeks access will be expected to pay the reasonable costs of granting that access’ and said: ‘I consider that the costs referred to are those of copying documents. Often there will be no such costs in the digital age.’
He added: ‘Parties are able to resolve their disputes in the employment tribunal free of charge. As a component of the costs of bringing or defending a claim the parties provide documentation to the tribunal. Subject to reasonable copying costs, where appropriate in this digital age, the very limited cost involved in complying with an application of the type in this appeal should be seen as part of the costs of preparation for the hearing.’
Tayler said lawyers drafting skeleton arguments and witness statements should ‘remember that such documents can generally be inspected at hearings and may be provided thereafter’, and also suggested that media access to trial bundles ‘might provide a welcome spur to ensure that documentation provided in bundles is limited to that [which is] relevant’.
The Guardian reported that EFG has ‘submitted an appeal to challenge part of the judge’s ruling’ in relation to one set of the documents sought.
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