Open justice may be open season, but not here , not yet - public access to court documents

The easier public access to court documents given under High Court Rules issued in 2009 has been reinforced by recent court decisions, here and in England.

That is good news for the media and good news for "follow on" damages claimants. But it may be bad news for applicants for leniency from the Commerce Commission.


In February this year, Justice Asher declined a request by the freight-forwarding company Schenker to access Court records compiled expressly for Commerce Commission proceedings against various airline companies (Commerce Commission v Air New Zealand Limited & Ors [2012] NZHC 271).

Schenker sought access to the documents in order to assess whether it could have claims (here or elsewhere) against the airline companies. The records involved a large amount of confidential information, including about non-parties (some of which also opposed release). Producing redacted versions of that information would have been a substantial burden on the parties.

Justice Asher stated that the 2009 reforms did not mean that there was now a presumption in favour of disclosure but rather that open justice, and the freedom to seek, receive and impart information were principles to be balanced against other considerations, such as the fair administration of justice and the protection of confidentiality interests.

The problem for Schenker was that the latter considerations were strong and Schenker's need for the information was not so strong. But context is everything and it is possible that an application by the media might have been treated more favourably.

Justice Asher drew a distinction between the interests of the media (which engage the open justice principle), and the interests of private parties (which engage the principles of freedom of expression).

The Guardian

Such was the experience of the Guardian newspaper in a decision in early April from the England and Wales Court of Appeal (Guardian News and Media Ltd, R (on the application of) v City of Westminster Magistrates' Court [2012] EWCA Civ 420).

The Guardian sought access to information from extradition proceedings brought by the US Government against two individuals alleged to have been involved in the bribery of Nigerian officials by a subsidiary company of Halliburton. Guardian reporters could not attend the entire trial and so sought copies of documents which had been referred to in Court. The first instance judge declined this application but access was allowed on appeal.


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