In AIB v Tracey (No. 2) the High Court recently ruled in favour of an application by a nonparty to litigation to have access to affidavits opened in Court which made comment about him. Judge Hogan ruled that at the very least, the non-party’s right to good name entitled him to view allegations made against him in court documents.
However there was a second, more comprehensive systemic reason for allowing such access. This is the principle of “open justice”; namely the constitutional requirement that justice be administered in public, so that it can be subject to scrutiny and examination and thereby promote confidence in the fair and even-handed administration of justice. In that context, Judge Hogan commented that public access to documents which were opened to the Court as being “part and parcel” of that principle. This right does not apply where the material had not been opened to the Court, or where the proceedings were held in private (e.g.: such as certain family law or refugee matters) or where specific reporting restrictions had been imposed.
This judgment is a step towards the position which pertains in other common law jurisdictions. In the United States, court documents are electronically filed and available to view and for purchase by the public. England and Wales has specific provision for nonparties, be they journalists, parties in linked litigation or simply curious onlookers, to obtain access to documents filed at Court, by way of a straightforward application to the Court office.
Judge Hogan’s decision is limited to those documents which have been “opened” to the Court. This means where all or a large part of the document has been read or referred to in detail in open court. Accordingly, it does not allow a right of access to affidavits which are filed but not then referred to or to documents filed in preparation for a court hearing prior to that hearing.
The decision is essentially a confirmation of existing practice where documents opened are referred to in media reports and often obtained informally. However, because the practice is now the subject of a considered decision, it may result in media organisations pressing the Courts Service for access to documents which have been so opened. If that happens, the Courts Service may be pressed to maintain a record of what has or has not been opened in a case.
Additionally the issue may be addressed in the Legal Services Bill currently before the Oireachtas.
From a litigant’s perspective, the safest course is to assume that a position taken in a document which may be opened to a court will likely become public if it is sufficiently newsworthy.