Consultation on Open Justice: Proposed Changes to CPR Part 39

The Ministry of Justice is consulting on proposed changes to CPR Part 39 “Miscellaneous Provisions relating to Hearings”.  The consultation opened on 12 July 2018 and closes on 23 August 2018.  Responses can be by completion of an Online Survey.

The MoJ is seeking views on proposed changes to Part 39 of the Civil Procedure Rules (CPR) ‘Miscellaneous provisions relating to hearings’. The proposed changes in this consultation have been drawn up to clarify open justice requirements in relation to hearings in private and reporting restrictions. In addition, the proposed amendments widen the definition of a ‘hearing’ explicitly to take into account technological developments, introduce new rules for parties communicating with the court, and supplement the provision of transcripts.  The full consultation document is here [pdf].

The consultation relates to proposed amendments to CPR 39.1 and 39.2 and two proposed new sub-rules, CPR 39.8 and 39.9.  These are as follows:

39.1 Interpretation

In this Part, reference to a hearing includes a reference to the trial.

(1) In this Part, a “hearing” means any proceeding before a judge (including a master or district judge) other than a determination on papers and where there is no oral pronouncement of the determination; and includes a proceeding conducted in whole or part by video link, telephone or other means of instantaneous two-way electronic communication.

(2) This Part does not apply to arbitration claims. (Rule 62.2(1) defines an arbitration claim).

Question 1 relates to this new definition of hearing.

 39.2 General rule—hearing to be in public

(1) The general rule is that a hearing is to be in public. A hearing may not be held in private, irrespective of the parties’ consent, unless and to the extent that the court is satisfied of one or more of the matters in paragraph (4) below.

(2) In deciding whether to hold a hearing in private the court must consider any duty to protect or have regard to a right to freedom of expression which may be affected. 

(2) The requirement for a hearing to be in public does not require the court to make special arrangements for accommodating members of the public
(3) The court shall take reasonable steps to ensure that all hearings are of an open and public character save when a hearing is held in private.

(3) (4) A hearing, or any part of it, may must be held in private if and to the extent that the court is satisfied that it is necessary to do so to secure the proper administration of justice and that—

(a) publicity would defeat the object of the hearing;

(b) it involves matters relating to national security;

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or protected party;

(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;

(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or

(g) the court for any other reason considers this to be necessary, in the interests of justice.

(4) (5) The court may must order that the identity of any party or witness must shall not be disclosed if it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness.

(6) Unless and to the extent that the court otherwise directs, where the court acts under paragraph (4) or (5), a copy of the court’s order shall be made available via the “CopyDirect” Service and to the Judicial Office at judicialwebupdates@judiciary.gsi.gov.uk for publication on the website of the Judiciary of England and Wales. Any person who is not a party to the proceedings may apply to set aside the order.

Questions 2 to 9 concern the various proposed amendments to this sub-rule.

In addition, two new sub rules are proposed.

39.8   Communications with the court (New provision)

(1) Any communication between a party to proceedings and the court must be disclosed to, and if in writing (whether in paper or electronic format), copied to, the other party or parties or their representatives.

(2) Paragraph (1) above applies to any communication in which any representation is made to the court on a matter of substance or procedure but does not apply to communications that are purely routine, uncontentious and administrative.

(3) A party is not required under paragraph (1) above to disclose or copy a communication if there is (or are) a compelling reason (or reasons) for not doing so; provided the reason or reasons is (or are) clearly stated in the communication.

(4) A written communication required under paragraph (1) above to be copied to the other party or parties or their representatives, must state on its face that it is being copied to that person or those persons, stating their identity and capacity.

(5) Unless the court otherwise directs, a written communication to the court which does not comply with paragraph (4) above will be returned to the sender without being considered by the court.

(6) In addition to the return of written communications under paragraph (5) above, where a party fails to comply with paragraph (1) above the court may, subject to hearing the parties, impose sanctions or exercise its other case management powers under Part 3.

Questions 10 to 12 relate to this new proposed sub-rule.

39.9  Recording and transcription of proceedings (New provision)

(1) At any hearing, whether in the High Court or the County Court, the proceedings will be tape recorded or digitally recorded unless the judge directs otherwise.

(2) No party or member of the public may use unofficial recording equipment in any court or judge’s room without the permission of the court. To do so without permission constitutes a contempt of court.

(3) Any party or person may require a transcript or transcripts of the recording of any hearing to be supplied to him, upon payment of the charges authorised by any scheme in force for the making of the recording or the transcript.

(4) Where the person requiring the transcript or transcripts is not a party to the proceedings and the hearing or any part of it was held in private under rule 39.2, paragraph (3) above does not apply unless the court so orders.

(5) Paragraph 6(2) of Practice Direction 52C (Appeals to the Court of Appeal) deals with the provision of transcripts for use in the Court of Appeal at public expense.

(6) At any hearing, whether in public or in private the judge may give appropriate direction to assist a party, in particular one who is or has been or may become unrepresented, for the compilation and sharing of any note or other informal record of the proceedings made by another party or by the Judge.

Questions 13 to 15 relate to this new proposed sub-rule.