“Some Christians have completely misconceived the issue of Homosexuality, they have begun to twist the word of God. it is clearly evident in 1 Corinthians 6:9 -11 what the bible says on this matter. I do not believe you can be born gay, and i do not believe homosexuality is right, though the law of this land has made it legal doesn't mean its right. I do believe that everyone sins and falls into temptation but its by the asking of forgiveness, repentance and the grace of God that we overcome and live how God ordained us too, which is that a man should leave his father and mother and be joined to his wife, and they shall become one flesh. Genesis 2:24. God loves everyone, just because he doesn't agree with your decisions doesn't mean he doesn't love you. Christians we need to step up and love but also tell the truth of God's word. I am tired of lukewarm Christianity, be inspired to stand up for what you believe and the truth # our God is three in one # God (Father) #Christ (son) #Holy Spirit”
“28. … she did not consider that sexual orientation was innate, or a given. It was something a human could will, control and alter, perhaps with God’s help. They were to [be] held responsible, as sinners, for their sexual attraction to members of the same sex.”
“34. The Color Purple is an epistolary novel written by Alice Walker and published in 1983. It won the Pulitzer prize and has worldwide renown. It is often read as a school text. The central character is Celie, a woman growing up in the southern state of Georgia in brutal circumstances, raped by her father at the age of 14, bearing him two children who were taken away, and blamed by her mother who left the home. She was married to an older man to be his housekeeper and raise his children. She never knew love and affection. Growing up she was close to her sister, Nettie, who left to work in Africa as a Christian missionary; Nettie’s letters to her were hidden by Celie’s husband, so she felt abandoned by all who cared for her. She formed an attachment with a woman jazz and blues singer, Shug Avery, who was her husband’s mistress. Shug awakens Celie to sexual desire, the first time she has experienced it, and they have a physical relationship. Then Shug marries, and Celie goes to live with the couple. Later Celie suffers when Shug has an affair with a man, but she attains acceptance and serenity.”
“Script is attached, please make sure you have read it before you come in this time around”
“@Seyiomooba Do you still stand by this post? Or are you happy to remain a hypocrite? Seeing as you’ve now been announced to be playing an LGBTQ character, I think you owe your LGBTQ peers an explanation. Immediately”
“I think, without it, they will have no choice but to rescind the role. If this is the case then, professionally speaking, I would advise you to step down rather than have that taken out of your hands. Would definitely rather talk than text, so call me.”
“we feel like using the word apology could be misconstrued.”
“The law protects my freedom of expression as well as freedom of thought, conscience and religion. With regard to the role of Celie, I will not disregard that Celie falls in love with Shug or that Celie believes in God and is black. There is so much to Celie. The role of an actor is to play characters different from myself. As for the [sic] personal faith I will stand firm.”
“at times, an actor’s skill set may call for the playing of a part which may not be in alignment with personal beliefs. However, the supportive environment of theatre cannot embrace a position, especially from the actor in the leading role of Celie, that creates a hostile atmosphere for the cast members and audiences alike.”
“64. In our finding, Chris Stafford had recognised early on that if the claimant’s 2014 views had not changed it would be hard to keep her on, and consultation had only confirmed what he thought was the case. His thinking about a decision to dismiss hardened when by Sunday evening he knew the claimant had nothing further to say. As well as internal dissension with cast and crew, he feared boycotts, audience booing, and demands for ticket refunds. The publicity would not sell tickets when a large section of the target audience was so hostile; it was not a family show. … 67. [By Tuesday19 March 2019 the second respondent] was now under pressure from constant messages on social media to the theatre, to other actors, to the funders, and generally. A statement about dropping the claimant from the production went through many redrafts. … The final version of the statement was bland: it said the reposting of the 2014 comments had caused “significant and widely expressed concerns both on social media and in the wider press. Following careful reflection it has been decided that Seyi will no longer be involved with the production. This decision was supported by the authors and Theatrical Rights Worldwide”
“homophobia is a natural reaction to homosexuality which is an aberration”; Mr Garrett was concerned that the claimant had not first discussed this with the first respondent, which had firmly maintained a rule of silence in the face of enquiries, and that this could only aggravate what was already a difficult position. The ET found that this article “expedited”
“I write to enquire whether any arrangements have been made for public access to the bundles and witness statements during the hearing, and what they are. In some cases, one of the parties’ solicitors has hosted the witness statements on a website, and allowed access to a hard copy of the bundle in a public area of their office. In others the hard copies of both have been made available at the tribunal building, but as currently Victory House is closed not just to the public but to its staff as well, this is not an option. Screen sharing is not practical when there are more than one or two items to display. Can I invite the parties representatives to confer and then tell me if an arrangement has been agreed, and what it is.”
“… in relation to the message from the Judge … Please note that the Christian Legal Centre is preparing to upload each witness statement on the web-site as soon as the witness begins to give evidence. We also propose to upload individual documents from the bundle once they have been mentioned in open court. Personal details such as email addresses and phone numbers will be redacted. … If you are content with this arrangement, I propose simply to inform the Judge about it. …”
“11. … Public access to written case materials was provided by the claimant’s representative’s Christian Legal Centre hosting on its website electronic copies of the witness statements. Documents referred to in the statements were uploaded as each witness was called; at the tribunal’s request, the pleadings, list of issues and opening arguments were posted from the beginning of the hearing, so that the public could understand the issues being argued. This was arranged prior to the hearing and with the consent of both respondents. The Christian Legal Centre also hosted for public access during the hearing a hard copy of the witness statements and documents bundle at their premises in Wimpole Street. This would usually have been done at the Employment Tribunal’s premises at Victory House, which is currently closed, to both staff and public, because of inadequate ventilation. 12. One document had to be redacted after uploading when it was noted that it contained information that should not be made public. The material was visible at most for 10 minutes. Those in the hearing were directed not to report the redacted content, formally or informally.”
“The claimant and her representatives, whether Christian Concern Ltd or Christian Legal Centre, are directed to remove from their website(s), by 5 p.m. on8 February 2021 , all documents posted there for the hearing of this claim, to include the agreed bundle of documents, the various supplementary bundles added in the course of the hearing, the bundle of witness statements, the parties’ openings, the closing arguments, the cast list and chronology.”
“2. … these materials were hosted by the claimant’s team following enquiry by the judge as to public access for the remote hearing and an agreement by both respondents that such hosting would facilitate public access to the materials. The hearing having ended, they should be removed. 3. The respondents consented to hosting on the claimant’s website on this understanding. 4. In a hearing in the tribunal building, they would only be available after the hearing by applying to the tribunal for permission to read them. Such permission is sometimes granted, and the reasons for access, or lack of it, are explained in Cape Asbestos v Dring … 5. The purpose of public access to written material is to enable understanding of what is said in the public hearing. After that, the public will in due course be able to read on the tribunal’s website the written judgment and reasons of the tribunal, to include their findings of fact, a statement of relevant law, and how the law has been applied to the facts found. If there is some other reason for continuing public access, the person seeking access may apply to the tribunal.”
“1. There will be a hearing on18 March 2021 to decide remedy, of [sic] appropriate, and any other application made in these proceedings.”
“… One result of the Twitter storm was that the play’s director was concerned that the central relationship could not adequately be performed as a sexual one because of [the] claimant’s belief impeding a convincing depiction. That may have been overcome if the claimant could commit to playing the part as directed (though now we know she would not). The controversy would also intrude on audience connection with the performance – their knowledge of the controversy because of the actress’s views, which would surely have stayed in the forefront of publicity, would interfere with their suspension of disbelief essential for performance. Some members of the audience might disrupt the performance. Or there would be a boycott, or objectors demonstrate [sic] outside, and tickets would be returned or remain unsold. These were not fanciful possibilities. Some were already being mentioned in social media. Others have happened in other controversial productions. Its theme was not likely to appeal to a mass audience, despite being a musical and despite being a school text. If she had stayed in, there was a real possibility that the production would have had to be cancelled in the face of a building storm of protest. There was no way to stem the tide unless she could make a convincing statement to allay the vocal objections, and she could not. The decision had to be made quickly, before the theatre’s hesitation led to accusations that it too was homophobic did more damage. What had been budgeted as a small loss, unless there were a tour, would become a very substantial loss. If the claimant had not been dropped there is no reason to hold that the production would have succeeded. The dismissal letter made clear that it was then [sic] effect of the publicity of her views in this particular production - the fact that her belief was “in the public eye”, in a work centred on homosexuality not being sinful - that meant the production was “untenable” and her participation “not practicable”
“40. … Payment of money is the remedy for breach, and if the money is offered in full there is nothing to gain from going to a hearing. She could still have a hearing of the other claims to obtain a declaration. On the claimant’s case, she had lost not just performance fees, but also the opportunity of enhancing reputation by performing; the claimant’s representative was unable to explain why even if he thought from March 2019 or in November 2019 that she would have performed the part, he should not have gone back to the second respondent to invite an increase in the offer to reflect this. This indicates the claimant’s objective was not to get a remedy for breach of contract, but have a trial for its own sake, with the attendant publicity. By the time the claim reached a hearing, the fact that she now recognized she would not have played the part meant the contract claim was without value. … 42. The additional and disturbing feature on this part of the claim is the public pronouncement just before the hearing by Christian Legal Centre that the theatre was trying to stifle a finding on unlawful discrimination by offering to pay (it also said she had turned it down when in fact she had not replied). Legal advisers, though perhaps not a publicist, will have known that settling the contract claim would not compromise the discrimination claim, and that the offer expressly did not compromise anything but the contract claim. They must have had some input into or control of the publicity. Turning down the offer to settle in full so as to have days in court, when a hearing could achieve no more (in fact less) than the offer is vexatious if it was done not to get redress for the claimant for a broken contract but as part of a campaign. The reason is not known, but the result, with respect to the contract claim, is vexatious ….”
“61. … Using the case as a publicity opportunity, rather than fighting it on its merits to redress wrong, transferred Christian Concern’s public relations budget to the respondents. 62. … there must be a suspicion that Christian Legal Centre did not want to engage in close study of the respondents’ case and revaluation of the merit of its own because of the campaigning opportunity. … We concluded that this did mean we should take their resources into account when exercising discretion to make a costs order. …”
“42. … the right not to hold the protected beliefs is a fundamental right which is recognised in international and human rights law and … the Convention too. There is nothing marginal about it. Nobody should be forced to have or express a political opinion in which he does not believe. … 43. … it is the badge of a truly democratic society that individuals should be free not to hold opinions. They should not be required to hold any particular religious or political beliefs. This is as important as the freedom to hold and (within certain defined limits) to express such beliefs as they do hold. …”
“29… Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the “operative” cause, or the “effective” cause. Sometimes it may apply a “but for” approach…The phrases “on racial grounds” and “by reason that” denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.”
“36. … the ultimate question is – necessarily – what was the ground of the treatment complained of … the reason why it occurred …”
“34. … the subject of the inquiry is the ground or, or reason for, the putative discriminator’s action, not his motive … a benign motive is irrelevant. …”
“37. … The fact that a claimant's sex or race is a part of the circumstances in which the treatment complained of occurred, or of the sequence of events leading up to it, does not necessarily mean that it formed part of the ground, or reason, for that treatment.”
“66. … the logic of the requirement that the protected characteristic or step must subjectively influence the decision maker is that there may be cases where the “but for” test is satisfied - but for the protected characteristic or step the act complained of would not have happened - and/or where the protected characteristic or step forms a very important part of the context for the treatment complained of, but nevertheless the claim fails because, on the evidence, the protected characteristic or step itself did not materially impact on the thinking of the decision maker and therefore was not a subjective reason for the treatment. This point is very well established in the field of employment law generally where, for example, an employer may be held to have acted by reason of dysfunctional working relationships rather than the conduct of the claimant which caused the breakdown in those relationships (see e.g. the cases on the distinction between dismissals related to “conduct” and dismissals for “some other substantial reason”, such as Perkin v St Georges Healthcare NHS Trust [2006] 617 CA; and the cases in relation to public interest disclosures such as Fecitt & Others v NHS Manchester (Public Concern at Work Intervening)[2012] ICR 372 CA and Panayiotou v Chief Constable of Hampshire Police[2014] IRLR 500 EAT).”
“… if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment”
“… an unjustified sense of grievance cannot amount to ‘detriment’”
“40. … objectively dictated by the nature of the occupational activities concerned or of the context in which they are carried out. It cannot, however, cover subjective considerations, such as the willingness of the employer to take account of the wishes of the customer.”
“In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account—(a) the perception of B;(b) the other circumstances of the case;(c) whether it is reasonable for the conduct to have that effect.”
“88. … In order to decide whether any conduct falling within sub-paragraph (1)(a) has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of subsection (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of subsection (4)(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also, of course, take into account all the other circumstances - subsection (4)(b). The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the conduct should not be found to have had that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant’s dignity or creating an adverse environment for him or her, then it should not be found to have done so.”
“28. … It may be that third party behaviour has created the environment in part, but the actions of an employer, to whom those third parties are not responsible, has made it worse, in which case the environment might be said to have been created by the actions of both. The extent to which the employer had by his actions assisted in that process of creation would be relevant when one came to the question of compensation, but not for the purposes of liability. Since the process of creation envisages a positive change in circumstance, can inaction ever be said to create an environment? 29. An example would be where a failure to act when an employee reasonably required that there be action had itself contributed to the atmosphere in which the employee worked, as for instance where she or he felt unsupported, to the extent that the failure to support him or her actively made the position very much worse, effectively ensuring that there was no light at the end of the tunnel in remedy of the situation with which, as a result of the actions of others, he or she then faced. In exploring that as a matter of theory we do not suggest that such cases will be common. It is perhaps unlikely that they will be readily found and an employment tribunal should only conclude that such has happened if there is cogent evidence to that effect; but we can see it as a possibility which is covered by the wording of the statute. We have greater hesitation in concluding however that “creating” is apt to include a case where all that can be said against an employer is that he has failed to remedy a situation brought about by the actions of others for whom he is not responsible. 30. The “unwanted conduct”, as it seems to us, therefore can (but not necessarily will) include inaction: but that conduct has to be taken on the grounds of race or ethnic or national origins if it is to create the hostile environment and thereby come within the heading of harassment. …”
“24. … that general review of the authorities provides, in our view, no reason for disturbing the chairman's exercise of the unfettered discretion conferred upon him. He took into account Unison’s means and involvement but it was not necessarily wrong to have done so. He did not overlook the applicants’ means; he specifically refers to no evidence on the subject being produced to him. Even if he had not had their means in mind it would not necessarily have been wrong not to have considered them. … Further, and very materially, the chairman had grounds for a fair inference that the union was pursuing not merely hopeless cases but was doing so with the collateral purpose of achieving the union's recognition, even perhaps as an alternative to the litigation. There was, we add, no evidence given to the employment tribunal or that the applicant-employees could not severally or jointly afford the costs. … the employees produced no evidence of means but it was said that all were still in employment. ... No adjournment, it seems, was sought in order that any such evidence could be adduced. Nor was it said that the union would not pay the individual applicant's costs if the applicants were ordered to pay costs but only that no indemnity had been given. The chairman's expectation that Unison would pick up the tab has not been said to be groundless; [counsel for Unison] …, on instructions, was not able to tell us whether or not the union would pick it up (although his argument, that we shall come to below, that the order was tantamount to a wasted costs order, was surely premised upon a view that it would). True it is that the chairman took into account both the actions and motives of the union and the fact that it is a very large union with substantial means but nothing in [the] rule … outlaws such considerations and the authorities, properly regarded, not only do not, but could not, fetter the discretion conferred by the legislature. …”
“25. … It is no such thing; under a wasted costs order a non-party is either disallowed costs or is ordered to pay them, neither of which results obtains here.”
“41. The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects if had. …”
“45. … The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la vérité est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation. … Where the application of a legal standard such as negligence or obviousness involves no question of principle but is simply a matter of degree, an appellate court should be very cautious in differing from the judge's evaluation.”
“7. As costs are in the discretion of the ET, appeals on costs alone rarely succeed in the EAT or in this court. The ET's power to order costs is more sparingly exercised and is more circumscribed by the ET's rules than that of the ordinary courts. There the general rule is that costs follow the event and the unsuccessful litigant normally has to foot the legal bill for the litigation. In the ET costs orders are the exception rather than the rule. In most cases the ET does not make any order for costs. If it does, it must act within rules that expressly confine the ET's power to specified circumstances, notably unreasonableness in the bringing or conduct of the proceedings. The ET manages, hears and decides the case and is normally the best judge of how to exercise its discretion. 8. There is therefore a strong, soundly based disinclination in the appellate tribunals and courts to upset any exercise of discretion at first instance. In this court permission is rarely given to appeal against costs orders. … 9. An appeal against a costs order is doomed to failure, unless it is established that the order is vitiated by an error of legal principle, or that the order was not based on the relevant circumstances. An appeal will succeed if the order was obviously wrong. As a general rule it is recognised that a first instance decision-maker is better placed than an appellate body to make a balanced assessment of the interaction of the range of factors affecting the court's discretion. This is especially so when the power to order costs is expressly dependent on the unreasonable bringing or conduct of the proceedings. The ET spends more time overseeing the progress of the case through its preparatory stages and trying it than an appellate body will ever spend on an appeal limited to errors of law. The ET is familiar with the unfolding of the case over time. It has good opportunities for gaining insight into how those involved are conducting the proceedings. An appellate body's concern is principally with particular points of legal or procedural error in tribunal proceedings, which do not require immersion in all the details that may relate to the conduct of the parties.”
“It is clear … that the Tribunal had agreed that the claimant’s representatives were permitted to post documents relating to the hearing on the website, during the hearing, specifically for the purposes of facilitating open justice … However, the claimant argues that the website in question was her representatives’ own website, on which they would have been entitled, in any event, to post certain documents relating to the litigation, … The claimant’s representatives also say that the order was made without the opportunity for full argument. However, if it is their case that they did not have the opportunity to raise this concern at the time, it does not appear that they have made any attempt to raise their concern with the Tribunal (or the respondents) since the order was made.”
“…there are no proper grounds for a restriction on publication apparently contained in para 2 of the Order of8 February 2021 . Given the passage of time, the Claimant respectfully invites the Tribunal to discharge the said para 2 of the Order forthwith. In the alternative, the Claimant respectfully invites the Tribunal to amend the Order, to insert the following after para 2: “Paragraph 2 of this Order does not preclude any publication, otherwise permitted by law, on a web-site of the Claimant’s representatives or otherwise, of any documents previously posted on the web-site of the Claimant’s representatives, including in particular (a) documents referred to or read by the Tribunal at the hearing of this claim, (b) any record of evidence given in open court.”
“17. I was wholly unaware that Christian Legal Centre had created its dedicated webpage “to report on the trial” as stated in paragraph 2 grounds of appeal … My understanding was that the arrangement outlined in their email, in reply to my enquiry about public access, and to which the respondents had consented, was an offer to host the public access case materials which in other circumstances would have been left in the hearing room and removed at the end of the hearing. It was on the basis of that understanding that the direction was made at the conclusion of the hearing that the case materials were now to be taken down from the website.”
“20. The claimant’s representative’s letter proceeds on the basis that once the documents have been made publicly available for the hearing they are to be available for all time to all people. It is not suggested how making them available after the hearing, and after the judgement has been published, will enable better understanding of the trial process and the reasons given for the decisions made. It proceeds on the basis that open justice is absolute. There is no attention given to the countervailing right to privacy of people who were not themselves party to the proceedings, many of whom did not give evidence. Many of the emails which circulated at the time of the events and were later disclosed and inserted in the hearing bundle were drafted in haste and sent in the expectation of privacy. Some of course were quoted in the judgement, but I have some concern that the entire contents of the hearing bundle may not have been carefully reviewed ahead of the hearing or in consultation with the authors of the emails, with a mind to public access, as shown by the unfortunate episode mentioned in paragraph 12 of the substantive judgement. This was probably because the parties’ solicitors were considering public access at short notice, and in circumstances where a public website was in practice far more public than a paper bundle in the hearing room which is usually little read. I was told that materials such as telephone numbers and email addresses had been or were to be redacted from the public copy, but I have not been able to check that even this was done. I consider there would need to be a hearing, as envisaged in Dring, to balance whether ongoing publication would advance the open justice principle, by elaborating on or quoting extensively from the material described in the judgement itself, to facilitate readers’ understanding, against the legitimate interest of the respondents in privacy in their commercial affairs, and of other individuals with concern as to their own privacy in emails which were disclosed as part of the tribunal process, very likely without their knowledge, but which may not have been available to the claimant, either at all, or in redacted form, under a Data Protection Act subject access request. 21.The request for … publication of “any record of evidence given in open court” is problematic for a different reason. The evidence in chief appears in the witness statements. There is no recording of cross-examination in the employment tribunal because the technical facilities for recording do not exist. In a court they would have been recorded, and a transcript could be prepared at the expense of the person applying for it. A record of the evidence given in the employment tribunal for post-hearing public consumption must be produced by transcribing the chairman’s note, cross-checked where necessary against the panel members’ notes, and this is a difficult and laborious process. It may be that the claimant’s representative intended publication of the witness statements only, but this is unlikely to assist public understanding of the trial process, because the public would not be aware of concessions and contradictions which became apparent in cross examination. Observers would of course have been able to understand the cross-examination better with sight of the statements, but not those who come after the event. 22.Had an application been made in the weeks following8 February 2021 , when the claimant’s representative had had an opportunity to take instructions and reflect, it would have been possible to invite representations, with a more detailed account of the reasons for seeking access, or to hold a further hearing, or both, to consider the request for access. Thirteen months after disposal it is too late for reconsideration (14 days is the normal time allowed, which can be extended under rule 5 if it furthers the overriding objective). There is no account of why the claimant, or Christian Legal Centre, did not apply before now, or whether there are any grounds other than open justice being an absolute.”
“23.Finally, It may be that the claimant’s representative understands not that the order required taking down case materials displayed on the website for public access during the hearing, but that it restricts publication of materials which are the claimant’s own which had been included in those case materials. There seems no reason why emails which she (or Christian Legal Centre) sent cannot be published, or her own witness statement. For emails sent to her by others it will be necessary to obtain their permission or consider whether they had a reasonable expectation of privacy. Documents which came into her possession through disclosure in the tribunal proceedings should be the subject of an application to the tribunal as envisaged in Dring. The statement of case (here, the claim form, particulars of claim, amendments thereto, the responses and amendments thereto) are available to non-parties as they would be under CPR, as is the judgment (which is in any case on the public website). I cannot see that any agreed chronology should not be public, though it is unlikely to promote understanding when the sequence of events is set out in the judgement. Expert evidence was not taken at the hearing so they [sic] can be disregarded.”
“As respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.”
“18. The inherent power of the court at common law to sit in private or anonymise material deployed in open court has never extended to imposing reporting restrictions on what happens in open court. Any power to do that must be found in legislation…”
“41. The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question. The extent of any access permitted by the court’s rules is not determinative (save to the extent that they may contain a valid prohibition). It is not correct to talk in terms of limits to the court’s jurisdiction when what is in fact in question is how that jurisdiction should be exercised in the particular case.”
“42. The principal purposes of the open justice principle are two-fold and there may well be others. The first is to enable public scrutiny of the way in which courts decide cases - to hold the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly. In A v British Broadcasting Corpn, Lord Reed reminded us of the comment of Lord Shaw of Dunfermline, in Scott v Scott[1913] AC 417 , 475, that the two Acts of the Scottish Parliament passed in 1693 requiring that both civil and criminal cases be heard “with open doors”, “bore testimony to a determination to secure civil liberties against the judges as well as against the Crown” (para 24). 43. But the second goes beyond the policing of individual courts and judges. It is to enable the public to understand how the justice system works and why decisions are taken. For this they have to be in a position to understand the issues and the evidence adduced in support of the parties’ cases. …”
“43. … In the olden days, as has often been said, the general practice was that all the argument and the evidence was placed before the court orally. Documents would be read out. The modern practice is quite different. Much more of the argument and evidence is reduced into writing before the hearing takes place. Often, documents are not read out. It is difficult, if not impossible, in many cases, especially complicated civil cases, to know what is going on unless you have access to the written material. 44. It was held in Guardian News and Media [R (Guardian News and Media Ltd) v City of Westminster Magistrates Court[2012] EWCA Civ 420 ] that the default position is that the public should be allowed access, not only to the parties’ written submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing. It follows that it should not be limited to those which the judge has been asked to read or has said that he has read. One object of the exercise is to enable the observer to relate what the judge has done or decided to the material which was before him. It is not impossible, though it must be rare, that the judge has forgotten or ignored some important piece of information which was before him. If access is limited to what the judge has actually read, then the less conscientious the judge, the less transparent is his or her decision.”
“45. However, although the court has the power to allow access, the applicant has no right to be granted it (save to the extent that the rules grant such a right). It is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle. In this respect it may well be that the media are better placed than others to demonstrate a good reason for seeking access. But there are others who may be able to show a legitimate interest in doing so. As was said in both Kennedy [Kennedy v Charity Commission[2014] UKSC 25 ], at para 113, and A v British Broadcasting Corpn, at para 41, the court has to carry out a fact-specific balancing exercise. On the one hand will be “the purpose of the open justice principle and the potential value of the information in question in advancing that purpose”. 46. On the other hand will be “any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others”
“The overriding objective of these Rules is to enable Employment Tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable— (a) ensuring that the parties are on an equal footing; (b) dealing with cases in ways which are proportionate to the complexity and importance of the issues; (c) avoiding unnecessary formality and seeking flexibility in the proceedings; (d) avoiding delay, so far as compatible with proper consideration of the issues; and (e) saving expense. A Tribunal shall seek to give effect to the overriding objective in interpreting, or exercising any power given to it by, these Rules. The parties and their representatives shall assist the Tribunal to further the overriding objective and in particular shall co-operate generally with each other and with the Tribunal.”
“The Tribunal may at any stage of the proceedings, on its own initiative or on application, make a case management order. … the particular powers identified in the following rules do not restrict that general power. A case management order may vary, suspend or set aside an earlier case management order where that is necessary in the interests of justice, and in particular where a party affected by the earlier order did not have a reasonable opportunity to make representations before it was made.”
“(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where- (a) the document has been read to or by the court, or referred to, at a hearing which has been held in public; (b) the court gives permission; or (c) the party who disclosed the document and the person to whom the document belongs agree. (2) The court may make an order restricting or prohibiting the use of a document which has been disclosed even where the document has been read to or by the court, or referred to, at a hearing which has been held in public. (3) An application for such an order may be made- (a) by a party; or (b) by any person to whom the document belongs. …”
“24. The terms ofCPR 31.22 (1) reflect the terms of the implied undertaking as to the use of documents that arose at common law. However in Smithkline Beecham v Generics[2004] 1 WLR 1479 this court held thatCPR 31.22 is now a complete code in relation to the use of disclosed documents. It was common ground before us: i) that that was so; ii) that the implied undertaking and, now the rule, applies not merely to the documents themselves but also to the information derived from those documents…; and iii) that the rule applied when disclosure was given in the employment tribunal. … 28. There is, however, no express provision in [the ET Rules] restricting the use of disclosed documents. I would, however, regard it as implicit that the same restriction on disclosure by the recipient should apply as arises underCPR 31.22 . The common law would necessarily imply some form of undertaking and the appropriate implication is that the person to whom disclosure is made pursuant to these Regulations should be under the same restriction as if he had given disclosure in the county court.”
“42. … One of the reasons for the rule [CPR 31 :22] is that compulsory disclosure is an invasion of a person’s private right to keep one’s documents to oneself and should be matched by a corresponding limitation on the use of the document disclosed …”