DCA meets media’s flak over court disclosure rule head-on

The Department for Constitutional Affairs (DCA) has hit back at the media organisations that accused it of trying to sneak through a change to rule 5.4 of the Civil Procedure Rules (CPR) on disclosure of court documents.

The DCA has told the media a revision to rule 5.4, introduced as part of the 40th amendment to the CPR, is merely a clarification of an existing rule.

The consortium of publishers has grown since news of the rule change was revealed in The Lawyer on 3 October. The group initially included Associated Newspapers, News International and Trinity Mirror. The Independent and The Independent on Sunday have also now joined.

The media organisations claim that the amendment is a change which will restrict the public’s access to information relating to court cases.

They have instructed Reynolds Porter Chamberlain (RPC) to fight their cause. RPC partner Keith Mathieson sent a letter to the DCA on behalf of his clients protesting at the change, which he says is an “unnecessary and disproportionate interference with the right to freedom of expression”.

The DCA has replied with vehemence. Committee secretary of the CPR Andrew Frazer has penned a response that compares the two versions of the rule. “The plain fact is that both versions entitle third parties to view copies of the claim form unless the court orders otherwise,” he wrote.

Referring to RPC’s claim that the earlier version of 5.4 allowed third parties access to documents attached to The new rule a claim form, the letter continues: “Such practice has never been provided for by the Civil Procedure Rules. Documents attached to the claim form (other than continuation sheets from the form itself, for example continuation of particulars of claim begun on the form or lists of the parties and their addresses) have never been authorised to be made available without permission.”

The letter also says that particulars of the claim when they are part of the claim form, and names and addresses of parties if they are in a separate document, will also be available to third parties.

But the response also says that “the most important point to note” is that there is no general rule allowing third parties to inspect court documents attached to claim forms and particulars of claim. A court order must be obtained in these situations.

Frazer concludes: “I can also state that the Rule Committee considers that public access to court documents is an important aspect of the administration of justice. The necessity for judicial scrutiny of documents other than the claim form before release […] is simply to ensure that documents are not released that may prejudice this.”

RPC’s Mathieson says that he and his clients are considering the next step, adding that obtaining a counsel’s opinion may be an option.

Meanwhile, a case has emerged that appears to roundly endorse the publishers’ stance on this issue.

At the end of August, the Australian Broadcasting Corporation (ABC), represented by Finers Stephens Innocent, fought to have documents relating to litigation between Multiplex and Cleveland Bridge disclosed. The two construction companies are embroiled in a dispute over the new Wembley Stadium, the subject of an ABC documentary.

Multiplex, represented by Clifford Chance, says that if the documents were released it would “distort the litigation process”. In a 31 August judgment in the Technology and Construction Court, Judge Wilcox disagreed, saying: “This court must not put itself in the role of nanny, judging whether or not matters are too complicated to disclose.”

That decision indicates support within the courts to have such information more freely available to the public and the press than rule 5.4 currently allows.

Mark Stephens of Finers says the rule change would “impede investigative journalism”, adding: “It’s a block and a fetter on the distribution of information fairly in the courts.”

Another City commercial litigation partner comments: “The effect is that a litigant can, by judicious drafting and the splitting up of his claim form, now conceal information which hitherto would have been available.”

The new rule

Any other person may, unless the court orders otherwise, obtain from the records of the court, a copy of:

  • a claim form, but not any documents filed with or attached to or intended by the claimant to be served with such claim form, subject to paragraph (6) and to any order of the court under paragraph (7).