On 6 April 2016, a new provision in PD 52C of the CPR gives accredited law reporters and members of the media access to skeleton arguments (anonymised for proceedings involving a child) prior to the commencement of hearings in the Court of Appeal.
Accredited court reporters have long lobbied for increased access to court materials to enable more accurate reporting of proceedings. The difficulties were, they argued, most pronounced at final hearings in the Court of Appeal Civil Division, where there is a heavy reliance on written submissions and little in the way of oral evidence.
Before the rule change reporters were dependant on the co-operation of the parties in order to obtain the documents required to fully understand the proceedings. They sought access to:
- Claim forms, particulars of claim and notices of appeal;
- Skeleton arguments;
- Judgments under appeal; and
- Witness statements.
The issue of media access to court documents had been considered in 2012 by the Court of Appeal in R (Guardian News and Media Limited) v City of Westminster Magistrates' Court  EWCA Civ 420,  QB 618.
In that case it was held that the court had the power to determine whether the disclosure of skeleton arguments, and other such documents, was necessary to give effect to the principle of open justice.
Toulson LJ, said: "The court has to carry out a proportionality exercise which will be fact-specific. Central to the court's evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others."
The new approach
After consideration and consultation the Civil Procedure Rule Committee concluded that skeleton arguments were the only class of document for which a strong case could be made in favour of increased media access.
The new Rule, entitled: "Documents to be provided to court reporters at the hearing of an appeal", provides that:
- a legal representative must bring to the appeal hearing two additional copies of the party’s skeleton argument for accredited law and media reporters.
- In appeals in family proceedings involving a child, the copies of the skeleton argument must be in anonymised form and must omit any detail that might, if reported, lead to the identification of the child.
- The skeleton arguments must be supplied before the commencement of the hearing to the usher or other court official who must provide one copy to an accredited law reporter and one to an accredited media reporter if requested. The copies are provided only for the purpose of reporting the court proceedings and on the basis that the recipients may remove them from the court and make further copies of them for distribution to other accredited reporters in court, again only for the purpose of reporting the court proceedings.
- Any party may apply orally at the commencement of the hearing for a direction lifting or varying the obligations to provide copy skeleton arguments and the rule lists the particular considerations to which the court will have regard on such an application (the interests of justice; the public interest; the protection of the interests of any child, vulnerable adult or protected party; the protection of the identity of any person intended to be protected by an order or direction relating to anonymity; and the nature of any private or confidential information (including information relating to personal financial matters) in the document.
There is no equivalent provision relating to skeleton arguments for first instance applications or trials. Those are not routinely kept on the court file in the High Court, so court reporters must still seek the assistance of the parties or their legal representatives if they want to see copies.