A recent practice direction issued by the Chief Justice of Ireland and recent judgments of Mr Justice Hogan indicate a shift by the Irish Courts towards a more general right of public access to court documents.
The prevailing situation in Ireland in relation to access to court documents is unusual among common law countries, in that there is a de facto prohibition on access to filed pleadings. This is in contrast to the general right of access that exists in other jurisdictions such as the United States and Australia where certain court documents can be accessed online.
The long-standing practice of restricting public access to court documents in Ireland is underpinned by section 65 of the Court Officers Act 1926 which maintains that access to court documents is not a general right and is instead at the presiding judge’s discretion.
However, two decisions in March and October 2013 of Mr Justice Gerard Hogan laid down new principles for public access to court documents. In AIB v Tracey (No.2), Justice Hogan allowed access to an affidavit that had been opened in court to a non-party. Justice Hogan later affirmed his position in Kelly v Byrne and based this on the entitlement of the public to have access to court documents in accordance with the Constitutional principle that justice be administered in public. He noted, however, that such entitlement would not apply to all court documents, only those that had been opened in court and in respect of which there were no reporting or other restrictions.
In another significant development, a Supreme Court practice direction (SC15) was issued in October 2013 stating that written submissions to the Supreme Court would now be made available to the public, albeit with the caveat that certain submissions would need to be redacted where necessary.
A consequence of this development is that any confidential and commercially sensitive information set-out in pleadings might be available to the public if the relevant pleading is opened to the court without restriction. If this would be an issue for potential litigants, they should consider asking the court, by way of submission or otherwise, to confirm that such information be restricted from public access.