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Open justice and access to court documents - a (lightly updated) footnote

October 21, 2013 posted by Steve Brownstein

Article 34.1 of the Constitution provides that “Justice … shall be administered in public“. By way of footnote to my earlier post on Open justice and access to court documents comes the decision of Hogan J in Allied Irish Bank plc v Tracey (No 2) [2013] IEHC 242 (21 March 2013). The applicant had been mentioned in affidavits filed by the defendant in the main action, and took this motion to have access to those affidavits. Hogan J held in his favour, and emphasised that he was entitled to the affidavits as of right and not necessarily on foot of an application to court:

[21] In any event, I do not consider that the Court’s permission was required for this purpose. These allegations were ventilated in civil proceedings in open court and, as I have already found, the affidavits were effectively openly read into the record of the court. Given that these proceedings were in open court pursuant to the requirements of Article 34.1 of the Constitution, it follows that any cloak of confidentiality or protection from non-disclosure vanished at point. …

[22] The open administration of justice is, of course, a vital safeguard in any free and democratic society. It ensures that the judicial branch is subjected to scrutiny and examination and helps to promote confidence in the fair and even handed administration of justice. Any system of secret court hearings could pave the way for judicial arrogance, overbearing judicial conduct and abuse.

[23] In these circumstances the public are entitled to have access to documents which were accordingly opened without restriction in open court. This is simply part and parcel of the open administration of justice which the Constitution (subject to exceptions) enjoins. …

This is an extraordinarily significant decision, placing on a constitutional footing what the Court of Appeal in R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 (03 April 2012) recognised as a fundamental principle of the Common law, and expanding what is at present available pursuant to Minister for Justice, Equality and Law Reform v Information Commissioner [2001] 3 IR 43, [2002] 2 ILRM 1, [2001] IEHC 35 (14 March 2001) interpreting section 46(1)(a)(I) of the Freedom of Information Act, 1997 (also here) (section 46 was amended by section 29 of the Freedom of Information (Amendment) Act, 2003 (also here), but not in any way that affected that decision). Moreover, Hogan J’s dismissal of “secret court hearings” calls our current system of closed refugee tribunals into question.

The public’s right of access to court documents is a very important aspect of the open administration of justice, but it has not heretofore been much exercised in Ireland. It is expected that the next draft of the Legal Services Regulation Bill 2011 will provide some practical guidance on how this very important right can be exercised. For example, it should clear up whether the public can exercise this right vis-à-vis the relevant court office (in principle, in my view, the answer to that question should be yes; though, at present, there would seem to be no such practice). Moreover, whilst the judgment itself only expressly covers documents fully opened in open court, the legislation could clarify the extent to which the public can have access to documents filed for the purposes of litigation but not opened in court.

Meantime, Allied Irish Bank plc v Tracey (No 2) has provided very generous parameters for such legislative procedures, and reinforced a constitutional right that is at the heart of the rule of law in our democratic polity.