Jeremy Bentham famously wrote that “publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.” Consistent with this idea, the English courts have long recognised the importance of the principle of open justice. From an English law perspective, the notion that the general public should be able to observe and understand the court process is not only uncontroversial; it is a fundamental requirement of the justice system.

In that context, it is, of course, important not only for court hearings to be open to the public wherever possible, but also for the public to be able to access the principal written evidence and submissions relevant to those hearings and the judgments that result from them. Without access to those documents, it will, in reality, often be difficult – if not impossible – for a third-party bystander properly to consider the approach taken by the court. This has become increasingly true in recent years, as the ongoing efforts to modernise the civil justice system continue to place an ever greater emphasis on written court filings.

There are currently two principal routes for a non-party to obtain court documents in England. It is fair to say that one of these routes is extremely limited; the other is somewhat cumbersome.

The first, limited route is to obtain from a court registry the documents which are automatically publicly available, pursuant to CPR 5.4C(1). However, that right only extends to statements of case, but not anything attached to them, and judgments and orders made in public.

Apr-Jun 2019 issue

Weil, Gotshal & Manges (London) LLP