When disclosure gets dangerous

Herbert Smith is on the naughty step again. The litigation juggernaut just got a ticking-off in a pre-trial hearing in a high-profile battle between the Barclay brothers and Irish property tycoon Patrick McKillen over control of some London’s top hotels.

The thorny issue once again comes down to disclosure (which tripped up Herbies client West African Gas Pipeline Company earlier this month when it was hit with a wasted costs order for e-disclosure failings) with Mr Justice David Richards saying the firm had taken a “lackadaisical” approach to the matter.

At times like this lawyers might rue the openness of the British courts but, as Justice Secretary Kenneth Clarke is finding with his Justice and Security Green Paper, there are plenty more that will fight tooth and nail to keep it.

Clarke’s Green Paper attempts to expand the use of secret evidence in civil litigation to whenever the Justice Secretary thinks that “sensitive material” that could cause “damage to the public interest” would be disclosed.

The US’s feeling that our concept of open justice is a bit inconvenient at times and our courtrooms a bit leaky – triggered by the embarrassment over the treatment of British citizen Binyam Mohammed at Guantanamo – is said to be behind the proposals, which were torn apart by open justice campaigners this week (see blog). Former Director of Public Prosecutions Lord Ken Macdonald QC went as far as to call the plans “an audacious attack on our justice system.”

Nothing lackadaisical about that.