Changes to the Civil Procedure Rules that came into force in early October 2006 have allowed greater access by the public to documents filed at Court. Non-parties to litigation, such as the media, will now find it much easier to gain access to documents filed as part of the litigation process.
Prior to October 2006, a non-party to litigation could obtain copies of a limited number of documents from the Court file unless specific permission was obtained from the Court. The only documents that could be obtained were the Claim Form and a copy of any Judgment or Order, if made in public.
Under the new rules, a non-party can obtain a copy of the Particulars of Claim, the Defence, any Reply to the Defence and any Further Information served by a party. These documents are available without the need for obtaining permission from the Court. It was originally envisaged that the rules would have a retrospective effect and would apply to statements of case filed prior to 2 October 2006. However, the Law Society intervened and applied for an injunction, which had the unprecedented effect of gagging the entire legal system. A claim for judicial review then followed. The Law Society agreed to withdraw its judicial review claim against the Department for Constitutional Affairs following a commitment from the Rules Committee that the relevant rule would be amended to apply only to statements of case filed in proceedings on or after 2 October 2006. That amendment has now been made.
For statements of case filed before that date, the previous rule will apply. This means that only the Claim Form will be available without specific permission from the Court. The revised rules came into force on 18 December 2006.
The Court process is not a private process and a large number of the documents on any Court file can be disclosed to a non-party, no matter how confidential or sensitive the content might be. Parties are able to prevent access only by making a successful application to the Court and it remains to be seen how the Courts will deal with such an application as the rules are silent on what criteria the Court will need to look at and apply. If there is concern about confidentiality then we can consider an application to try and prevent a non-party being able to request a copy of a particular document.
Careful consideration should now also be given to the content of the Particulars of Claim and Defence. Of course, information cannot be omitted if it would undermine the merits but, if confidential or damaging information can safely be omitted, then arguably it should be.