A non-party applied to inspect written submissions and documents forming part of the evidence, including witness statements which had been referred to in open court but not read out. The application was refused at first instance.
Held: The appeal was allowed in part. Historically there had been no right, and there was no current provision, enabling a member of the public to see, examine or copy a document on the basis that it had been referred to in court or read by the judge. No recent development in court procedures justified the court in contemplating such an exercise under its inherent jurisdiction. On the other hand, the arguments for such an exercise in respect of the written submissions of counsel were stronger. A non-party to an action is entitled to inspect and copy written opening submissions and skeletons referred to by the judge during the trial, but not to documents merely referred to in the judge’s reading list and in affidavits.
Potter LJ said: ‘If, as in the instant case, an opening speech is dispensed with in favour of a written opening (or a skeleton argument treated as such) which is not read out, or even summarised, in open court before the calling of the evidence, it seems to me impossible to avoid the conclusion that an important part of the judicial process, namely the instruction of the judge in the issues of the case, has in fact taken place in the privacy of his room and not in open court. In such a case I have no doubt that, on an application from a member of the press or public in the course of the trial, it is within the inherent jurisdiction of the court to require that there be made available to such applicant a copy of the written opening or skeleton argument submitted to the judge.’
Judges:
Butler-Sloss, Potter LJJ, Sir Patrick Russell
Citations:
Times 13-Jan-1999, Gazette 10-Feb-1999, [1998] EWCA Civ 3538, [1999] WLR 984
Links:
Jurisdiction:
England and Wales
Litigation Practice
Updated: 19 May 2022; Ref: scu.80840
