CIVIL PROCEDURE RULE COMMITTEE
Press access to skeleton arguments in the Court of Appeal:
proposal for amendment to CPR Practice Direction 52C
Consultation paper
Introduction
1. At its meeting on 15 May 2015, the Civil Procedure Rule Committee agreed to
take forward for consultation a proposal that CPR Practice Direction 52C be
amended so as to place an obligation on represented parties to an appeal before the
Court of Appeal to bring two additional copies of their skeleton argument to the
hearing of the appeal, for use by accredited law reporters and accredited media
reporters.
2. For quite some time, representatives of the press have been pressing for improved
access to material they say they need for reporting purposes. The representations
received make reference to the principle of open justice and to the difficulties
faced by court reporters at hearings in circumstances where there is little by way
of oral introduction to the case and there is heavy reliance on written submissions.
They explain that reporters are currently dependent in practice on the co-operation
of the parties in order to obtain documents required for the purpose of
understanding the proceedings but that it is unsatisfactory for the parties to have
control in that way over the reporting of a case. They say that access is needed to
the following classes of documents: (1) claim forms, particulars of claim and
notices of appeal; (2) skeleton arguments; (3) judgments under appeal; and (4)
witness statements. It is clear from the representations that access to such
documents is sought primarily for the purpose of informed contemporaneous
reporting.
3. The topic of access to documents referred to in court has been the subject of
extensive judicial consideration in recent years. The principal cases were
examined by the Court of Appeal in R (Guardian News and Media Limited) v City
of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618, in
which it was held that the court has inherent power, irrespective of whether the
matter is covered by rules of court, to determine whether disclosure of skeleton
arguments and other documents referred to in court is required by the principle of
open justice. The context of the Guardian case was that of criminal proceedings
(extradition) but the reasoning applies equally to civil proceedings. Toulson LJ,
with whom the other members of the court agreed, summarised the correct
approach at paragraph 85 of his judgment:
“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,
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the case for allowing it will be particularly strong. However, there may
be countervailing reasons ….
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.”
4. The Committee decided against trying to formulate a set of rules to encompass the
principles expounded in the Guardian case but it took the view that the limited
change proposed in this paper would be in line with those principles.
5. The categories of documents referred to at the end of paragraph 2 above are
examined in turn below.
Claim forms, particulars of claim and notices of appeal
6. CPR rule 5.4C governs the supply of documents to non-parties from court records.
It includes the following basic provisions:
“Supply of documents to a non-party from court records
5.4C – (1) The general rule is that a person who is not a party to
proceedings may obtain from the court records a copy of –
(a) a statement of case, but not any documents filed with or
attached to the statement of case, or intended by the party whose
statement it is to be served with it;
(b) a judgment or order given or made in public (whether made
at a hearing or without a hearing) ….
(2) A non-party may, if the court gives permission, obtain from the
records of the court a copy of any other document filed by a party, or
communication between the court and a party or another person …..”
7. Paragraphs (1A) and (1B) of the rule contain exceptions to paragraph (1), and
paragraph (3) contains further limitations on the circumstances in which a nonparty may obtain a copy of a document under paragraph (1). Paragraph (4)
empowers the court, on the application of a party or of any person identified in a
statement of case, to order that a non-party may not obtain a copy of a statement
of case under paragraph (1), or to impose restrictions on disclosure. Where an
order is made under paragraph (4), a non-party who wishes to obtain a copy of the
statement of case may apply on notice for permission. By rule 5.4D, a person
wishing to obtain a copy of a document under rule 5.4C must pay a prescribed fee
(set by reference to the number of pages copied) and (i) if the court’s permission
is required, file an application notice in accordance with Part 23, or (ii) if
permission is not required, file a written request for the document.
8. A “statement of case” is defined in rule 2.3(1) as meaning “a claim form,
particulars of claim where these are not included in a claim form, defence, Part 20
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claim, or reply to defence” and as including “any further information given in
relation to them voluntarily or by court order under rule 18.1”. The definition has
been read expansively as including an acknowledgment of service (with summary
grounds for contesting the claim) in judicial review proceedings.
9. It follows that a procedure already exists whereby a third party, including a
representative of the press, can obtain claim forms and particulars of claim from
court records.
10. The Committee gave consideration to whether rule 5.4C(1) should be extended to
cover appellant’s notices and respondent’s notices. It decided against such a
move, in part because of the difficulties arising out of the need to confer
appropriate protection in anonymised cases and in part because it considered that
access to such documents was not necessary for the purpose of informed
contemporaneous reporting of a hearing in court, especially if skeleton arguments
were made available as discussed below.
Skeleton arguments
11. The Committee considered there to be a strong case for providing access by the
press to the skeleton arguments of represented parties at the hearing of an appeal
before the Court of Appeal (Civil Division). Skeleton arguments are generally
taken as read for the purposes of oral argument in that court, and access to them
would facilitate an accurate understanding of the issues and submissions. The
focus has been on the Court of Appeal since that is where the problem addressed
in this paper is most acute. If, however, the proposal set out below is
implemented for the Court of Appeal, consideration can be given to extending it to
other jurisdictions, notably the Administrative Court, in the light of experience.
12. The essence of the proposal is that each party should be required to bring
additional copies of their skeleton argument(s) to the hearing of an appeal, for use
by accredited court reporters, subject to the right to apply orally to the court at the
beginning of the hearing for the lifting or varying of the relevant obligation. The
Committee rejected, as wrong in principle, a proposal that the parties be required
to provide copies directly to court reporters. What is now proposed is that the
parties be required to supply copies to the usher or other court official present in
court, so that control over their provision to court reporters lies with the court.
The obligation on the parties would be limited to the supply of two copies, with a
view to one copy being provided in court to an accredited law reporter and one to
an accredited media reporter. It would be the responsibility of the usher or other
court official to check on the accreditation of any reporter before providing them
with a copy. Copies would be provided on the basis that there would be no bar to
their removal from court or to the making of further copies for distribution to
other accredited court reporters.
13. The right for any party to apply to the court for a direction that the normal rule be
departed from is very important, though the need for an application is likely to
arise only in a small minority of cases. The most obvious situations in which
departure may be called for will be in relation to skeleton arguments for a closed
or “in private” hearing or where anonymisation or reporting restrictions are in
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place. But a wide range of circumstances may justify the withholding of
documents in whole or in part: compare the factors in rule 32.13(3), quoted at
paragraph 19 below, that may cause the court to decide that a witness statement
should not be open to inspection. In deciding on any application the court will be
able to take into account whether any concern about disclosure is or can be met by
anonymisation and/or reporting restrictions. It is thought preferable to approach
the matter in that way rather than, for example, to formulate the rule in terms that
would exclude all anonymised cases from its scope altogether.
14. It is considered that the obligation referred to above should be limited to full
appeals. Very few permission hearings attract law reporting or media interest and
it would be disproportionate to impose the additional burden on the parties in such
cases.
15. It is also considered that the obligation should be limited to legally represented
parties.
16. The obvious place to locate the obligation is in CPR Practice Direction 52C,
which contains a relatively self-contained code of practice for appeals in the Court
of Appeal (Civil Division). A convenient slot is at the end of the existing practice
direction, i.e. at the end of Section 7 (“Bundles and skeleton arguments”).
17. Accordingly, the Committee is minded to propose the amendment of Practice
Direction 52C by the addition of a new paragraph 33 as follows:
“Documents to be provided to court reporters at the hearing of an
appeal
33(1) Where a party is legally represented at the hearing of an appeal,
the legal representative must bring to the hearing two additional copies
of the party’s skeleton argument (including any supplementary skeleton
argument) for provision to accredited law reporters and accredited
media reporters in accordance with sub-paragraphs (2) and (3) below.
(2) The additional copies must be supplied before the commencement of
the hearing to the usher or other court official present in court.
(3) The usher or other court official to whom the copies are supplied
must provide one copy to an accredited law reporter (upon production
of their Royal Courts of Justice security pass) and one copy to an
accredited media reporter (upon production of their press pass), if so
requested by them. Those copies are to be provided on the basis that the
recipients may remove them from the court and may make further copies
of them for distribution to other accredited reporters in court.
(4) Any party may apply orally to the court at the commencement of the
hearing for a direction lifting or varying the obligations imposed by subparagraphs (2) and (3). Where a party intends to make such an
application or is notified by another party of the intention to make one,
the operation of those sub-paragraphs is suspended pending the ruling
of the court.”
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Transcripts of judgments
18. The Committee rejected a proposal to require the parties to bring to the hearing of
an appeal, for provision to court reporters, additional copies of the transcript of the
judgment under appeal. The view was taken that transcripts of judgments in the
higher courts and tribunals are generally available on BAILII in any event; that
where parties have to pay for an official transcript for the purposes of an appeal,
they should not be required to pay for copies additional to those required to be
filed with the court; and that it would be disproportionate to require the parties to
provide transcripts of judgments in addition to copies of their skeleton argument.
Witness statements
19. CPR rule 32.13 makes specific provision in respect of witness statements. It
provides:
“Availability of witness statements for inspection
32.13 – (1) A witness statement which stands as evidence in chief is
open to inspection during the course of the trial unless the court
otherwise directs.
(2) Any person may ask for a direction that a witness statement is not
open to inspection.
(3) The court will not make a direction under paragraph (2) unless it is
satisfied that a witness statement should not be open to inspection
because of –
(a) the interests of justice;
(b) the public interest;
(c) the nature of any expert medical evidence in the statement;
(d) the nature of any confidential information (including
information relating to personal financial matters) in the
statement; or
(e) the need to protect the interests of any child or protected
party.
(4) The court may exclude from inspection words or passages in the
statement.”
20. The Committee took the view that that rule deals sufficiently with access to
witness statements.
Other matters considered
21. The Committee considered whether the parties should be required to bring to the
hearing of an appeal, for use by court reporters, a note of the parties’ names and
geographical area(s) of residence. The view was taken that it would be
unreasonable and inappropriate to impose such an obligation on them. The names
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of the parties, unless anonymised by order of the court, will appear in any event
on the daily court list and in the heading to the skeleton arguments. Details of
geographical area(s) of residence are not necessary for a proper understanding of
the issues and arguments at the hearing of an appeal.
Invitation to consultees
22. Consultees are invited to give their views on the matters set out in this paper and
specifically on the proposal at paragraph 17 above.
19 May 2015
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