NAB v Serco Ltd & Anor [2014] EWHC 1225 (QB)

[2014] EWHC 1225 (QB)Case No HQ11X04387
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/04/2014
Before
MR JUSTICE BEAN
Between
NABClaimant(1) SERCO LIMITEDDefendants(2) THE HOME OFFICEDefendant
Mr Guy Vassall-Adams (instructed by Guardian News & Media Ltd Legal Department) for Guardian News & MediaJeremy Johnson QC (instructed by DWF LLP) for Serco Ltd for The Claimant and the Home Office did not appear and were not represented.Hearing Hearing dates: 07 February & 04 April 2014
JudgmentMr Justice Bean :
[1]Guardian News and Media Ltd (“the Guardian”) apply under CPR 31.22(1) for a declaration that NAB, the Claimant in a civil action against Serco Limited and others, may lawfully supply the Guardian with a copy of a document disclosed by Serco in those proceedings; or alternatively for permission to have the document supplied to them by the Claimant’s solicitors. Serco resist the application and in the alternative cross-apply for an order under CPR 31.22(2) prohibiting the Claimant and her solicitors from supplying the document to the Guardian or others.[2]NAB was from 4th October 2010 until 17th February 2011 an immigration detainee at Yarl’s Wood Immigration Removal Centre, which is and was operated by Serco Ltd. In January 2011 she made a complaint alleging that on three occasions in the preceding two months at Yarl’s Wood she had been sexually assaulted and harassed by a male nurse (whom I will call “T”) employed by Serco.[3]Serco appointed their deputy head of security and operations to investigate the alleged inappropriate behaviour by T towards the claimant. A report, each page of which is marked “Serco in Confidence”, was produced on 21st January 2011.[4]On 24th November 2011 NAB issued a claim for damages in this court against three defendants: Serco, the Home Office and the Chief Constable of the Bedfordshire Police. Her claim against Serco was in respect of the three alleged sexual assaults by T referred to above, and argued that “each and every touching of the Claimant by [T] which was not justified by his professional role amounted to a battery for which the First Defendant is vicariously liable.”[5]Against the Home Office NAB claimed damages for false imprisonment in respect of all or part of her period of detention. The claim against the Bedfordshire Police was based on an allegation that they failed to conduct an effective investigation of the assault allegations: it was settled at an early stage and I need say no more about it.[6]Following the close of pleadings in NAB’s claim Serco served lists of documents on 15th April and 4th June 2013. On 16th May 2013 the claimant’s solicitor Harriet Wistrich made a witness statement in what was still at that stage a claim against both Serco and the Home Office. Paragraph 2 records that the purpose of the statement was to set out the steps taken by NAB to complain about the conduct of the nurse who assaulted her and about the investigations into her original complaint. She exhibits 15 documents to her statement including the Serco internal investigation report. She refers to it in paragraph 12 of her statement:- “I have now seen their investigation report and have to say I find some of the conclusions extraordinary. … At D7 it is stated that the allegations “are very detailed and appear to be consistent each time [NAB] has relayed them”. The suggestions seems to be that there is something suspicious about her consistency. I have to say, though, this is the first time I have ever come across an analysis that a claimant may be lacking in credibility because of her consistency; normally credibility is questioned when a claimant is inconsistent.”[7]On 7th June 2013 Serco settled NAB’s claim against them by the payment of a sum in damages. On 18th June the claimant’s solicitors wrote seeking Serco’s permission to disclose the report to third parties and stating that they intended to make an application to the court in the event that Serco did not agree.[8]The Home Office was now the only remaining defendant. The claim against the Home Office for damages for false imprisonment proceeded to a trial which took place before His Honour Judge Sycamore (sitting as a judge of the High Court) from 8-10 July 2013. The report remained an exhibit to one of the witness statements, and as such was in the trial bundle; but it was not referred to in the skeleton arguments or reading lists lodged by counsel before the trial. I accept Mr Johnson’s submissions that it was not relevant to the issues which the judge had to try between NAB and the Home Office.[9]By a reserved judgment handed down on 30th August 2013 Judge Sycamore held that the claimant was detained unlawfully from 3rd to 17th February 2011 but otherwise rejected the claim for false imprisonment. He heard evidence from the claimant, Ms Wistrich and three witnesses employed by the Home Office. His judgment contains criticisms of the claimant whom he found to be an “evasive” witness, and “quick to blame others for the provision of false and misleading information”.[10]In paragraph 50 he noted that the claimant had not pleaded any cause of action against the Home Office relating to alleged failures in the investigation of her complaints of sexual assault, adding:- “the original claim was also against Serco and the Chief Constable of Bedfordshire Police. The claim against this defendant is limited to the tort of false imprisonment.”[11]The report itself is not mentioned in Judge Sycamore’s judgment. At paragraph 18 he notes that following the complaint by the claimant on 8th January 2011 Serco recorded that complaint “and began an investigation”.[12]Immediately after judgment had been handed down NAB’s solicitors wrote to Serco asserting that their client was now free to disclose the report to third parties. Serco disputed this. After further correspondence between the solicitors for NAB and for Serco, on 29th October 2013 the legal department of the Guardian wrote to Serco stating that they were “aware” of the investigation report having been an exhibit to a witness statement which had formed part of the evidence in the trial, and saying that unless Serco agreed that the report was now a public document the Guardian would make an application to the court. Serco’s response was that the report had not been referred to in Judge Sycamore’s judgment and was not a public document.

The without notice application of 10 December 2013

[13]On 10th December 2013 the Guardian issued an application notice seeking:
“a ruling that a document disclosed by the Respondent to the Claimant NAB in the above proceedings (the Serco investigation report) is a pubic document under CPR 31.22(1)(a) and/or that the Claimant’s legal representatives are granted permission to provide the report to the Applicant under CPR 31.22(1)(b) and/or that the Applicant is entitled to a copy of the report from the court file under the principles in Guardian News and Media Limited v City of Westminster Magistrates’ Court.”
[14]June Sheehan, a solicitor employed by the Guardian, made a witness statement in support of the application. A copy of Judge Sycamore’s judgment was exhibited. Ms Sheehan’s witness statement summarises paragraph 18 of that judgment as recording that in January 2011 the claimant had reported that she had been sexually assaulted on three occasions “and that Serco recorded an official complaint and began an investigation which culminated in a report”. This paragraph was inaccurate. It is true that Judge Sycamore’s judgment noted that Serco had recorded the claimant’s complaint and begun an investigation. It is also true that Serco’s investigation culminated in a report. But the fact that the investigation had culminated in a report was not stated in Judge Sycamore’s judgment.[15]Ms Sheehan attended before Master Roberts with a document headed “Draft Order” which included the following:- “Upon hearing counsel for Guardian News & Media Ltd and counsel for Serco IT IS ORDERED that for reasons given in the judgment dated ……. the report is a public document under CPR 31.22(a)”.[16]An application under CPR 31.22(a), unless made with the written consent of the respondent, must be heard on notice. Nevertheless, and despite the inclusion in the draft order of the words “and upon hearing…… counsel for Serco”, the Master dealt with the application there and then on a without notice basis. The date of 10th December 2013 was inserted and the order was sealed the same day. On the strength of this, and before the order had even been served on Serco, the claimant’s solicitors provided the Guardian with a copy of the report. At this point the error was spotted. On 12th December Ms Sheehan again attended at court (this time before Master Yoxall). The previous order was amended to delete the reference to Serco having been represented and to give the opportunity to them to apply to vary or set it aside within seven days. The next day Master Leslie stayed the order of Master Roberts altogether.[17]Serco were notified shortly afterwards of what had occurred. On 18th December the Guardian undertook not to publish the contents of the report without giving notice. They subsequently returned it to Serco, although it has been made available to counsel and solicitors acting for the Guardian for the purposes of this application.[18]Ms Sheehan has apologised for the unfortunate and unintended inaccuracy in her witness statement of 10th December. Serco, through Mr Jeremy Johnson QC, accept that she did not intend to mislead the court, as do I. But Serco understandably complain of the carelessness shown at the without notice application of 10th December – not all of which, as it seems to me, can be attributed to Ms Sheehan.[19]Although there was a suggestion in the written materials placed before me that this episode should lead to the summary dismissal of the Guardian’s application for disclosure of the report Mr Johnson did not press for that outcome in oral argument, and in my view was right not to do so. The error can properly be reflected in costs.[20]On 20th December 2013 Serco issued a cross-application under CPR 31.22(2) prohibiting the use of the report by the Claimant or her solicitors supplying it to the Guardian.

The hearing of 7 February 2014

[21]The next diversionary episode in this litigation was of a different kind. On 6th February 2014, the last working day before the date fixed for the hearing of this application, Maria Seaton-Fry, a solicitor employed by Serco, stated that she had learned of a police investigation concerning a sexual assault at Yarl’s Wood. In addition to the other reasons advanced by Serco in opposition to the Guardian’s application, they wished to add the risk of prejudicing that investigation and possible criminal charges arising out of it. It was not possible to obtain any information about the police investigation on the day of the hearing, and that hearing accordingly proved abortive. Subsequent enquiries have revealed that the allegations to which the solicitor referred were by a different complainant against a different alleged perpetrator and that there is no overlap between the subject matter of NAB’s case and that investigation. Mr Johnson accepts that this has proved to be, in his phrase, a red herring. The hearing before me was re-listed for 4 April 2014.

Relevant provisions of the CPR

[22]CPR 31.22 provides:- “(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…………..”[23]CPR 5.4C makes provision for the supply of documents to a non-party from court records. The general principle is that a non-party may, without the need for permission, obtain copies of each party’s statement of case but not documents filed with them, although an order prohibiting such access or making it conditional on editing the document concerned may be made under CPR 5.4C(4). A non-party may, if the court gives permission, obtain a copy of any other document filed by a party (CPR 5.4C(2)).

Was the document read to or by the judge or referred to at the hearing?

[24]The evidence is that the Serco report was not read aloud, in whole or in part, in the course of the hearing before Judge Sycamore. As it was not referred to in the skeleton argument or reading list filed by counsel for either side it is unlikely that it was read by the judge either. However, it was referred to by Ms Wistrich in paragraph 12 of her witness statement, in the passage cited above. Ms Wistrich was called – unnecessarily as it seems to me – to give oral evidence. She began by adopting her witness statement and then answered some “supplementary questions” from counsel for NAB. The questions and answers did not refer to the report as such but Ms Wistrich was asked what she considered to be good practice in terms of informing a complainant who has made an allegation of sexual assault or rape of the outcome of an investigation. She answered in terms of the practice of the police and the Crown Prosecution Service. Counsel for the Home Office, Ms McGahey, had no questions to put in cross examination and observed that the questions about good practice in informing complainants of the outcome of investigations did not relate to any pleaded issue at all.[25]The authorities indicate that documents exhibited to an affidavit or witness statement are to be treated for the purposes of inspection as if they formed a part of the affidavit or witness statement itself: see In re Hinchliffe [1895] 1 Ch 117 and Barings plc v Coopers & Lybrand [2000] 1 WLR 2353. In the Barings case the Court of Appeal also held that where documents are put before the court for the purpose of being read in evidence the onus is on the party contending that the documents have not entered the public domain to show they have not done so, for example because the judge has not in fact read them; and the judge cannot be asked whether he has done so or not. The issue before the court was whether transcripts of interviews in a statutory enquiry by Board of Trade inspectors, which had been exhibited to an affidavit filed on behalf of the Secretary of State for Trade and Industry in disqualification proceedings, had thereby become “available to the public” within the meaning of section 82 (2) of the Banking Act 1987. This is not exactly the same issue as whether documents have been “referred to” in the course of proceedings, but the rationale of the Barings case applies. (If there is any distinction between the two phrases, I consider that it is in favour of the Guardian’s application, since a decision as to whether documents have become “available to the public” involves a rather circular argument.)[26]In Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [2000] FSR 1 Lord Bingham CJ said:- “For reasons which are very familiar, it is no longer the practice for counsel to read documents aloud in open court or to lead the judge, document by document, through the evidence. The practice is instead to invite the judge to familiarise himself with material out of court to which, in open court, economical reference, falling far short of verbatim citation, is made. In this new context, the important private rights of the litigant must command continuing respect. But so too must the no less important value that justice is administered in public and is the subject of proper public scrutiny. ……………….. Public access to documents referred to in open court (but not in fact read aloud and comprehensibly in open court) may be necessary, with suitable safeguards, to avoid too wide a gap between what has in theory and what has in practice, passed into the public domain.”[27]I am satisfied that the report was “referred to” at the hearing before Judge Sycamore. It was mentioned, however briefly, by Ms Wistrich in oral evidence as well as being exhibited to a witness statement which was before the judge. So the rule governing the present application is CPR 31.22 (2), the power to restrict the use of a document referred to at a public hearing, rather than CPR 31.22 (1) (b), the power to give permission to use disclosed documents not referred to in public. But it would be curious if in a case like this, where the reference to the document at the public hearing was marginal and gratuitous, there were to be any great difference between the proper approach under the two rules. There is force in Mr Johnson’s submission that the difference between the two is only one of the burden of proof and that it is unlikely that the burden of proof would be the basis of my decision in this case.[28]In GIO Personal Investment Services Ltd v Liverpool and London Steamship P&I Association Ltd [1999]1 WLR 984 Potter LJ said:- “So far as concerns documents that form part of the evidence or core bundles, there has historically been no right, and there is currently no provision, which enables a member of the public present in court to see, examine or copy a document simply on the basis that it has been referred to in court or read by the judge. If insofar as it may be read out it will “enter the public domain” in the sense already referred to and a member of the press or public may quote what is read out but the right of access to it for purposes of further use of information depends on that person’s ability to obtain a copy of the document from one of the parties or by other lawful means. There is no provision by which the court may, regardless of the wishes of the parties to the litigation, make such a document available to a member of the public, nor, so far as such documents are concerned, do I consider that any recent development in court procedure justifies the court contemplating such an exercise under its inherent jurisdiction. …”[29]I do not consider that these observations remain good law. Firstly, as the Court of Appeal pointed out in Barings, the earlier case of In re Hinchcliffe was not cited in GIO. Secondly, the case was governed by the old Rules of the Supreme Court rather than by the Civil Procedure Rules, in particular CPR 31.22. Thirdly, quite apart from the Rules, the common law approach to the disclosure of documents in core bundles has changed significantly since 1998, as shown by the most recent authority of R (Guardian News & Media Ltd) v City of Westminster Magistrates Court [2013] QB 618 (“Guardian v Westminster”), to which I shall refer later.[30]Mr Johnson relied on Lilly Icos Ltd v Pfizer Ltd (2) [2002] 1 WLR 2253, a case to which the Civil Procedure Rules did apply. In proceedings for revocation of a patent, documents were disclosed containing figures relating to three patent holder’s advertising and promotional expenses. The trial was conducted in public but on the basis of a “confidentiality club”: that is to say, certain documents designated as confidential were to be seen only by the judge and professional advisers on each side. The Court of Appeal, reversing Laddie J, held that even though a document containing the figures for advertising expenditure had been referred to during the public hearing its confidentiality should be maintained by an order pursuant to CPR 31.22 (2). At paragraphs 25-26 the court set out the considerations which had guided them:- “25 i) The court should start from the principle that very good reasons are required for departing from the normal rule of publicity. That is the normal rule because, as Lord Diplock put it in Home Office v Harman [1983] AC 280 at p303C, citing both Jeremy Bentham and Lord Shaw of Dunfermline in Scott v Scott “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.” The already very strong English jurisprudence to this effect has only been reinforced by the addition to it of this country’s obligations under articles 6 and 10 of the European Convention. ii) When considering an application in respect of a particular document, the court should take into account the role that the document has played or will play in the trial, and thus its relevance to the process of scrutiny referred to by Lord Diplock. The court should start from the assumption that all documents in the case are necessary and relevant for that purpose, and should not accede to general arguments that it would be possible, or substantially possible, to understand the trial and judge the judge without access to a particular document. However, in particular cases the centrality of the document to the trial is a factor to be placed in the balance. iii) In dealing with issues of confidentiality between the parties, the court must have in mind any “chilling” effect of an order upon the interests of third parties: see paragraph 5 above. iv) Simple assertions of confidentiality and of the damage that will be done by publication, even if supported by both parties, should not prevail. The court will require specific reasons why a party would be damaged by the publication of a document. Those reasons will in appropriate cases be weighed in the light of the considerations referred to in sub-paragraph (ii) above. v) It is highly desirable, both in the general public interest and for simple convenience, to avoid the holding of trials in private, or partially in private. In the present case, the manner in which the documents were handled, together with the confidentiality agreement during trial, enabled the whole of the trial to be held in public, even though the judge regarded it as justified to retain confidentiality in respect of a significant number of those documents after the trial was over. The court should bear in mind that if too demanding a standard is imposed under CPR 31.22(2) in respect of documents that have been referred to inferentially or in short at the trial, it may be necessary, in order to protect genuine interests of the parties, for more trials or parts of trials to be held in private, or for instance for parts of witness statements or skeletons to be in closed form. vi) Patent cases are subject to the same general rules as any other cases, but they do present some particular problems and are subject to some particular considerations. As this court pointed out in Connaught, patent litigation is of peculiar public importance, as the present case itself shows. That means that the public must be properly informed; but it means at the same time that the issues must be properly explored, in the sense that parties should not feel constrained to hold back from relevant or potentially relevant issues because of (legitimate) fears of the effect of publicity. We venture in that connexion to repeat some words of one of our number in Bonzel v Intervention Ltd [1991] RPC 231 at p234:
“the duty placed upon the patentee to make full disclosure of all relevant documents (which is required in amendment proceedings) is one which should not be fettered by any action of the courts. Reluctance of this court to go into camera to hear evidence in relation to documents which are privileged which could be used in other jurisdictions, would tend to make patentees reluctant to disclose the full position. That of course would not be in the interest of the public.”
In our view, the same considerations can legitimately be in the court’s mind when deciding whether to withdraw confidentiality from documents that are regarded by a party as damaging to his interests if used outside the confines of the litigation in which they were disclosed.” 26. In our view, the most important feature of this case, and one that we think with respect was not sufficiently addressed by the judge (see paragraph 21 above), is the very limited role that page 2 played in the trial. If it had been placed n a physically separate document from page 1 of the schedule, and had not been, unnecessarily, referred to in passing by the patentee’s deponent, it would not have fallen under the terms of CPR 31.22(1)(a) at all. To keep the trial judge, or ourselves in hearing the appeal, under trial, in the terms referred to in paragraph 25(iii) above, it is not necessary, and indeed it is not relevant, for the interested spectator to have access to page 2, however much it may fall under CPR r 31.22(a). That consideration enables the court to take a somewhat less demanding approach to the claim for confidentiality than would otherwise be appropriate.” “the duty placed upon the patentee to make full disclosure of all relevant documents (which is required in amendment proceedings) is one which should not be fettered by any action of the courts. Reluctance of this court to go into camera to hear evidence in relation to documents which are privileged which could be used in other jurisdictions, would tend to make patentees reluctant to disclose the full position. That of course would not be in the interest of the public.”[31]The principles in paragraph 25(v) of Lilly Icos v Pfizer remain good law and are not confined to patent litigation. They will resonate with anyone who has been involved, for example, in applications for an injunction to prevent the disclosure of trade secrets. The court has jurisdiction under CPR 39.2 (3)(c) to hold a hearing or part of it in private, but this is a last resort: it is far preferable for the hearing to be in public and for documents which really do contain commercial secrets to be the subject of an order under CPR 31.22(2). But the present case is far removed from litigation of that kind.[32]In any event, all earlier authorities must now be viewed in the light of two recent ones. In R (Mohammed) v Secretary of State for Foreign & Commonwealth Affairs [2011] QB 218 Lord Judge CJ said:- “38. Justice must be done between the parties. The public must be able to enter any court to see that justice is being done in that court, by a tribunal conscientiously doing its best to do justice according to law. For that reason, every judge sitting in judgment is on trial. So it should be, and any exceptions to the principle must be closely limited. In reality very few citizens can scrutinise the judicial process: that scrutiny is performed by the media, whether newspapers or television, acting on behalf of the body of citizens. Without the commitment of an independent media the operation of the principle of open justice would be irremediably diminished.39. There is however a distinct aspect of the principle which goes beyond proper scrutiny of the processes of the courts and the judiciary. The principle has a wider resonance, which reflects the distinctive contribution made by the open administration of justice to what President Roosevelt described in 1941 as the "…first freedom, freedom of speech and expression". In litigation, particularly litigation between the executive and any of its manifestations and the citizen, the principle of open justice represents an element of democratic accountability, and the vigorous manifestation of the principle of freedom of expression. Ultimately it supports the rule of law itself. Where the court is satisfied that the executive has misconducted itself, or acted so as to facilitate misconduct by others, all these strands, democratic accountability, freedom of expression, and the rule of law are closely engaged.40. Expressed in this way, the principle of open justice encompasses the entitlement of the media to impart and the public to receive information in accordance with article 10 of the European Convention of Human Rights. Each element of the media must be free to decide for itself what to report.41. Although expressed in wide and general terms – and perhaps inevitably so expressed – in my judgment the principles of freedom of expression, democratic accountability and the rule of law are integral to the principle of open justice and they are beyond question. They do not enable the media to require parties to litigation to continue it if they do not wish to do so in order for the media to have a better story, or permit the media to study material which has been made subject to non-disclosure on well established PII principles, or to report proceedings where, in the interests of justice, by operation of law, such reporting is prohibited. It is, of course, elementary that the courts do not function in order to provide the media with copy, or to provide ammunition for the media, or for that matter private individuals, to berate the government or the opposition of the day, or for that matter to berate or laud anyone else. They function to enable justice to be done between parties. However where litigation has taken place and judgment given, any disapplication of the principle of open justice must be rigidly contained, and even within the small number of permissible exceptions, it should be rare indeed for the court to order that any part of the reasoning in the judgment which has led it to its conclusion should be redacted. As a matter of principle it is an order to be made only in extreme circumstances.”[33]I bear in mind that this very well known decision concerned the suggestion that a judgment of the court should be published in redacted form. The other authority relied on Mr Vassall-Adams, Guardian v Westminster, is closer to the present case. The United States Government had brought proceedings seeking the extradition of two British citizens on corruption charges. Following hearings in public before a District Judge at the Westminster Magistrates’ Court, both were ordered to be extradited. Journalists working for the Guardian had attended part of the hearings at which certain documents had been referred to by counsel but not read out in detail. These included not only skeleton arguments of counsel, but affidavits and witness statements submitted by the US prosecutors, and correspondence between the US Department of Justice and the Serious Fraud Office.[34]The Guardian applied to the district judge for an order that it be provided with copies of, or be allowed to inspect, those documents. The parties to the extradition proceedings supplied copies of counsel’s skeleton arguments but opposed further disclosure. The district judge refused the application on the basis that the principle of open justice did not confer upon the public a right to inspect documents before the court in criminal proceedings, and a court had no power either under the Criminal Procedure Rules or its inherent jurisdiction to make such an order. The Divisional Court dismissed a claim for judicial review (as well as an appeal by way of case stated).[35]The Court of Appeal reversed the Divisional Court and granted the Guardian access to the documents. Toulson LJ, giving the leading judgment, stated at paragraph 76 that the Guardian had a serious journalistic purpose in seeking access to the documents, wishing to refer to them for the purpose of stimulating informed debate about the way in which the justice system dealt with suspected international corruption and the system for extradition of British subjects to the USA.[36]After referring to the GIO and Smithkline Beecham v Connaught decisions, Toulson LJ said at paragraph 85:- “85. In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong. However, there may be countervailing reasons. In company with the US Court of Appeals, 2nd Circuit, and the Constitutional Court of South Africa, I do not think that it is sensible or practical to look for a standard formula for determining how strong the grounds of opposition need to be in order to outweigh the merits of the application. The court has to carry out a proportionality exercise which will be fact-specific. Central to the court's evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others. ………….. 87. In this case the Guardian has put forward good reasons for having access to the documents which it seeks. There has been no suggestion that this would give rise to any risk of harm to any other party, nor would it place any great burden on the court. Accordingly, its application should be allowed.” Toulson LJ recognised at paragraph 90 that “this decision breaks new ground in the application of the principle of open justice, although not, as I believe in relation to the nature of the principle itself.”[37]Mr Johnson accepts that the default position following Guardian v Westminster must be open access but submits that this applies only where access to the documents is necessary to make the proceedings intelligible, or to assist the public in understanding the issues which were before the court. He emphasises that by the time the present case came on for trial before Judge Sycamore the Serco report was no longer relevant to any issues before the judge. He adds that Serco had settled, partly in order to avoid adverse publicity, and it would tend to discourage settlement if documents disclosed (no doubt unwillingly) prior to a compromise being reached were thereafter still open to public scrutiny.[38]The unusual feature of the present case is indeed that by the time the public hearing before Judge Sycamore took place, Serco were no longer a party to the claim; and the report, referred to very briefly in the way I have described, was no longer relevant to the issues in the case. I have taken that into account, but in my judgment it is not decisive. Suppose that after the settlement, but before the case against the Home Office had come to trial, the Guardian had applied under CPR 5.4C(2) for access to the Serco report, which at that stage would have still been part of the court records of the case. In my judgment, applying the principles set out in Guardian v Westminster, the application would have succeeded; and it likewise would have succeeded if an application had been made under the same rule for access immediately after the case against the Home Office had been determined (whether by judgment or settlement) at a time when the court office still retained the file.[39]CPR 5.4C recognises that there may be a legitimate public interest in the inspection not only of statements of case lodged with the court, but also, with permission, other 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. It is true that an application to inspect documents under CPR 5.4c (2) may be made too late to be effective if all the copies of court bundles have been returned to the parties, as is the usual practice when a case has been concluded and no appeal is pending. But that is a matter of mechanics. In this case, at the time when the Guardian made its application, the court had retained the witness statements and exhibits.[40]I have considered whether the public interest in open justice is outweighed in this case by the risk of harm to the legitimate interests of others. The Article 8 rights of T and NAB have to be considered. Both are named in the report; he is also named in the pleadings.[41]Mr Vassall-Adams, in his words “pragmatically”, offers an undertaking by the Guardian that if allowed access to the report they will maintain the anonymity not only of NAB, the complainant, but also of T, 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. (It is right to emphasise that to this day T has never been arrested or charged with an offence arising out of NAB’s complaints, and that Judge Sycamore formed a poor view of her credibility, albeit on other issues.)[42]The only other risk of harm is to the reputation of Serco. Even that risk can be exaggerated. The particulars of claim filed on behalf of NAB and other pleadings are public documents subject to inspection as of right under CPR 5.4C (1). The fact of the allegations having been made is therefore in the public domain.[43]The Guardian has a proper journalistic purpose in seeking to inspect a document which they believe may throw light on whether or not the allegation was properly investigated. I decline to make an order under CPR 31.22 (2). On the basis of the undertaking set out in the last paragraph, the Guardian should be allowed access to the report and should be free to publish its contents.

Cited in 13 later judgments

and 4 more of the most senior