The strong presumption in favour of public access to documents referred to in Court proceedings was emphasised by the High Court in the case of NAB v Serco ([2014] EWHC 1225 (QB)). Bean J dismissed an application by Serco Limited to restrict access by the Guardian to an internal report into sexual assaults at Yarls Wood Immigration Removal Centre which had been mentioned in court proceedings.
Background
The claimant, NAB, was an immigration detainee at the Yarl’s Wood Immigration Removal Centre which was operated by Serco Ltd. She complained that, on three occasions, she had been sexually assaulted and harassed by a male nurse. The Defendant carried out an investigation and produced a report (“the Report”).
The Claimant commenced proceedings on 24 November 2011 claiming damages from Serco in respect of the alleged sexual assaults and damages from the Home Office for false imprisonment. On 7 June 2013, Serco settled NAB’s claim by a payment of sum in damages.
The claim against the Home Office proceeded to trial. The Report was an exhibit to one of the witness statements but it was not referred to in the judgement.
NAB’s solicitors then asserted that their client was now free to disclose the report to third parties. Serco disputed this. The legal department of the Guardian then wrote to Serco saying that they were aware of the report and that, if they did not agree that the report was a public document, they would make an application to the Court.
On 10 December 2013, the Guardian issued an application seeking a ruling that the Report was a public document under CPR 31.22. The application was originally made without notice to Serco. The Guardian were supplied with a copy of the report but undertook not to publish without giving notice to Serco. They subsequently returned the Report.
The Guardian’s application for a declaration that NAB was entitled to disclose the Report to them was, ultimately, heard by Bean J on 4 April 2014.
Judgment
The Judge noted that the Report had not been read by or to the Court at the trial of NAB’s claim against the Home Office. It was, however, mentioned briefly in evidence and was exhibited to a witness statement which was before the Judge. Documents exhibited to a witness statement are, for the purposes of inspection, to be treated as if they formed part of the witness statement (Barings plc v Coopers & Lybrand [2000] 1 WLR 2353).
The issue was, therefore, whether the Court should use its power under CPR 31.22(2) to restrict the use of a document referred to at a public hearing.
In considering this issue, the Judge noted that, as a result of the decision in R (Guardian News & Media Ltd) v City of Westminster Magistrates Court ([2013] QB 618) the default position is open access to documents referred to in the course of proceedings [37].
There was a legitimate public interest in the inspection not only of statements of case lodged with the court but also, with permission, documents such as witness statements or exhibits placed on the court file:
“The public interest is not confined to cases where the court has given judgment and it is sought to see whether the underlying documents provide further illumination of the judgment. It may be just as significant to discover why a case settled”. [39]
The Judge noted that the Guardian had, “pragmatically”, offered an undertaking that, if allowed access to the report, they would maintain the anonymity of NAB and of the alleged perpetrator:
“The public interest is in how Serco handled the investigation, not in the identity of the complainant or of the man subject to the complaint” [41] .
The Judge concluded that the Guardian had a “proper journalistic purpose” in seeking to inspect the document which, they believed, could throw light on whether or not the allegation by NAB had been properly investigated. As a result, he declined to make an order under CPR 31.22(2).
Comment
This case is a further illustration of a welcome tendency towards openness and public access to court documents. As Bean J pointed out there is a now a presumption in favour of access to any document placed before the Court. Although the Report was not relevant to any issue at the trial and had been mentioned only very briefly in passing the public interest clearly favoured its disclosure.
The Judge pointed out that “proper journalistic purposes” not only covered the examination of documents where a court had given judgment – there could be just as significant a public interest in discovering why a case had settled.
It is also important to note that, when disclosure is been given, the legitimate interests of third parties had to be protected. In this case, the Guardian gave undertakings which protected the anonymity of the accuser and the accused.
This judgment will be welcomed by journalists and bloggers as again demonstrating the commitment of the Courts to the principles of open justice.
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