Practice Direction HC 101
From 11 January 2021, any member of the public will be able to seek access to written submissions delivered by legally represented parties to civil litigation in the High Court where a judgment has issued. The President of the High Court has issued a new practice direction governing the process.
The practice direction seeks to promote the constitutional principle of open justice and comes against the backdrop of an increasing reliance on remote hearings.
Status quo
Since 2018, bona fide members of the media have had the right to access court records to facilitate the fair and accurate reporting of a court hearing. That right applies to records opened, or deemed to have been opened, in court.
Until now, the right of access to High Court records has been reserved to parties to the proceedings, their legal representatives and bona fide members of the media. Others have had to apply to court for access on notice to the parties to the litigation. Judges have had a broad discretion when deciding such applications. That position will continue for Court records such as pleadings, because the new practice direction only applies to legal submissions.
New Rules
The new High Court practice direction mirrors an earlier Supreme Court practice direction. Written submissions lodged in the Supreme Court have been publicly available since 2013.
Once the new High Court practice direction takes effect, legally represented parties to High Court civil proceedings will need to prepare a version of their written submissions for publication. A redacted copy will need to be submitted to the Court for publication where the submissions contain any information, the publication of which is prohibited or would contravene an enactment, rule of law or court order.
Commentary
Although this new practice direction mirrors the procedures in place in the Supreme Court since 2013, it nevertheless marks a significant change in High Court civil proceedings.
Practitioners and parties will need to be cognizant of the fact that their written submission may be subject to public scrutiny in the same way as oral submissions in Court. Parties will also need to have regard, when preparing their submissions, to the principle of data minimization. It is possible that third parties will seek access to written submissions in an effort to obtain a litigation advantage in related proceedings. The practice direction does not envisage the parties to the litigation getting notice of any third party request for access to the written submissions.
Nonetheless, allowing the public a general right of access to written submissions promotes the open administration of justice in the High Court and is to be welcomed for that reason.
For more information, please contact Enda Hurley, Ciaran Ó Conluain or Rebecca O'Brien or your usual contact on the A&L Goodbody Litigation & Dispute Resolution team.
