Changes in court procedure where judges now read rather more before hand to save court time could lead to confusion as to what of the paperwork before the court was now deemed to have been read in open court and therefore in the public domain. The change in practice should not change the law. Papers upon which a patent revocation was based were in the public domain even when not read out.
Lord Bingham CJ said: ‘Since the date when Lord Scarman expressed doubt in Home Office v Harman as to whether expedition would always be consistent with open justice, the practices of counsel preparing skeleton arguments, chronologies and reading guides, and judges pre-reading documents (including witness statements) out of court, have become much more common. These methods of saving time in court are now not merely permitted, but are positively required, by practice directions. The result is that a case may be heard in such a way that even an intelligent and well-informed member of the public, present throughout every hearing in open court, would be unable to obtain a full understanding of the documentary evidence and the arguments on which the case was to be decided.
In such circumstances there may be some degree of unreality in the proposition that the material documents in the case have (in practice as well as in theory) passed into the public domain. That is a matter which gives rise to concern . . As the court’s practice develops it will be necessary to give appropriate weight to both efficiency and openness of justice, with Lord Scarman’s warning in mind. Public access to documents referred to in open court (but not in fact read aloud and comprehensively 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.’
Lord Bingham of Cornhill LCJ, Otton, Robert WalkerLJJ
Times 13-Jul-1999,  4 All ER 498,  EWCA Civ 1781, (2000) 51 BMLR 91,  CPLR 505,  FSR 1
England and Wales
Cited – Chan v Alvis Vehicles Ltd and Another ChD 8-Dec-2004
The parties had had a part trial, and settled. The Gardian Newspaper now applied for disclosure of various documents to support a proposed news story. The parties had disputed payment to the claimant of commissions on the sales of military vehicles . .
Cited – Albion Plc v Walker Morris (A Firm) CA 19-Mar-2006
The court was asked whether defendant firm of solicitors should be prevented from acting for potential conflict of interest. They sought leave to appeal an order restraining them from acting. They had acted in two similar matters for the client . .
Lists of cited by and citing cases may be incomplete.
Updated: 20 May 2022; Ref: scu.89350