Restrictions on access to county court documents strike at fundamental tenets of English law, says Rupert Grey. Rupert Grey is joint senior partner of Crockers Oswald Hickson.
Open justice is one of the fundamental principles of the English legal system. It should operate to ensure that the media can freely report court procedures and related information without impediment. Justice should be done, and the public should see that it is being done.
Last week a county court judge made inroads into this principle by refusing The Lawyer access to a summons issued in the court by the clerk to a set of barristers' chambers.
The media's access to our legal system, both criminal and civil, is governed by a legal framework set out in the county Court Rules and the Rules of the Supreme Court.
Order 63, Rule 4 of the latter provides the right for any member of the public to inspect, for a fee, a copy of any writ of summons or other originating process and any judgment or court order at any time. Journalists, in other words, are enabled to report on the information they contain, including the course of action and what remedy the plaintiff is claiming. If, as is not infrequently the case, a statement of claim is endorsed on the writ, the journalist's report will be all the more complete.
Not, however, in the county court: there the right of inspection is curtailed. Members of the public have no means of finding out what the plaintiffs are claiming and their course of action.
Order 50, Rule 10 (2) of the County Court Rules states that a person who is not a party to an action can only obtain copies of documents from the court records with the leave of the district judge. The judge is entitled to exercise his discretion on the point, and last week a district judge at the Mayors and City Court declined to grant such leave, despite the fact that section 76 of the County Courts Act 1984 stipulated that, where possible, the county court should adopt or apply the High Court Rules.
There is nothing in the rules to govern the manner in which a district judge has to exercise his discretion.
The reasons given last week were that the release of the summons “would encourage members of the public to make such applications, and it would inhibit settlements”. The judge went on to say that he was not “fettering the rights of the press”, and described The Lawyer's application as “inappropriate”.
But a fetter on the right of the press is exactly what the judgment amounts to. Parliament has provided comprehensive legislation to govern the circumstances in which the media can be restrained from reporting cases. That legislation does not include arguments between barristers and their clerks.
Indeed, it might be thought to be precisely the sort of case that readers of The Lawyer – or the national press – are entitled to know about.
The County Court Rules and High Court Rules are currently being amalgamated. The process of the amalgamation can be seen on internet. Lawyers should watch carefully to ensure that the provisions of the High Court should prevail as far as access to originating process, so that the public's right of access is adequately protected.