Open Justice: Rule Changes To Increase Transparency In The Civil Courts

From 6 April 2019, a number of changes to the Civil Procedure Rules will come into effect with the intention of reinforcing the principle of open justice and clarifying how it operates within the civil justice system. While some of those changes simply bring the rules into line with principles established in case law, there are a number of new provisions which may have an impact on the conduct of hearings in the civil courts, including a new power to direct the compilation or sharing of a summary of a hearing with an unrepresented party.

Open justice versus right to privacy

The concept of open justice is fundamental to the English justice system and, arguably, to democracy itself. It recognises that, in a system based on the rule of law, those who are subject to the law must be able to see the law being made and applied and to scrutinise the workings of the legal process. Indeed, recent case law has confirmed that where the public has improperly been excluded from proceedings, judicial decisions taken in those circumstances may be invalid ( R (on the application of O'Connor) v Aldershot Magistrates Court).

However, as the principle exists to serve the interests of justice, it may be departed from where necessary to ensure justice, including protecting a right to privacy. The question of how these competing interests should be balanced has come under some scrutiny in recent years, most notably in connection with a number of "super-injunctions" (heavily anonymised injunctions often dealing with the private lives of prominent individuals). The courts have also recently grappled with the issue in the context of determining the extent of the public's right to access documents held on the court file (Cape v Dring).

The upcoming rule changes follow a consultation by the Ministry of Justice last summer and arise out of concerns that the existing rules do not adequately reflect the importance of open justice. In particular, the consultation recorded a concern that CPR 39, which contains general provisions regarding the conduct of court proceedings, does not properly reflect that any departure from open justice should be regarded as exceptional and only implemented to the extent necessary to ensure justice.

Private hearings and witness anonymity

Accordingly, a key amendment to CPR 39 is a small but important wording change to the provision regarding private hearings. In place of the existing provision that hearings "may be in private" if one of a...