GARETH BRAHAMS AND JAMES LADDIE QC1
Introduction
- The civil resolution of disputes is undoubtedly a noble idea and having a system that can deliver this is a cornerstone of a democratic society. One would hope that most people who go into law are to some extent at least attracted to the idea that they are playing their part in a system where the rules are clearly set out, each party has the opportunity to put forward their case and an impartial judge determines the outcome.
- It therefore perhaps came as a shock to many of us upon our arrival as trainees or pupils in this esteemed profession to hear our principals explain to us that the merits of a dispute are, at best, but one factor among many that determine the outcome of litigation, the vast majority of which never finds its way inside a court or tribunal.
- "But", naively we asked, "if it is not just about who is right and who is wrong, what else determines the outcome of a dispute?" And, of course, the answer is, multifarious: who has more resources to deploy in the litigation? Who has more to lose? Who has the better lawyer? Who can devote the amount of time and energy necessary in this extraordinarily long process that is called justice? Who has the resilience to cope with this level of distraction from core business or other parts of their life?
- And then there is publicity. Of course, we are told at law school, cases must be heard in public. The principle is sacred. But our principals tell us, of course, that the person who wins in the court of public opinion is not necessarily the same as the person who succeeds in the court of law. Indeed, very often, the papers are much more interested in reporting that the allegation has been made rather than what the outcome of the case is.
- Whether the principle of "open justice" is in fact more undermining of achieving justice and access to dispute resolution than it is supportive of it, is, perhaps a subject for another paper. What is certain, however, is that in many cases, and especially employment cases, whether a case is to be reported in the press and, if so, subject to what restrictions, is very often determinative of the outcome of the litigation – often it is commercially a more important issue than the legal merits of the underlying dispute.
- This is all the more the case in whistleblowing and discrimination disputes.
- In this paper we consider the following questions:
- What is the open justice principle?
- To what extent is the European Convention on Human Rights relevant to open justice?
- Absent successful applications under rule 502 etc., at what stage do employment tribunal disputes become public?
- What are the benefits and disbenefits to society and the threats and opportunities for the parties of publicity in employment tribunal disputes?
- What privacy orders are available, whom can they cover and when are they made?
What is the open justice principle?
- The open justice principle requires that the public should be free to attend court hearings and that proceedings are to be freely reportable. The open justice principle has long been regarded as an essential component of the rule of law.
- Jeremy Bentham, the 18th century utilitarian philosopher and
jurist, put it this way:
"In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial." - In 1913, the seminal case of Scott v Scott came before the
House of Lords.3 Mrs Scott wanted her marriage declared
void because of her husband's impotence. The case was heard in
private and the declaration given. In what can only be described as
a rather callous parting gesture, Mrs Scott sent copies of the
hearing notes to Mr Scott's father and sister and also to a
third party. Mr Scott was unhappy about this and asked the court to
find that Mrs Scott was in breach of the order for the hearing to
be held in private. The court held that Mrs Scott had acted in
contempt of court, however, the House of Lords allowed Mrs
Scott's appeal. Lord Atkinson said:
"The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all of this is tolerated and endured, because it is felt that in public trial is to be found, on the whole, the best security for the pure impartial and efficient administration of justice, the best means for winning for it public confidence and respect." - A few years later in the case of R v Sussex Justices, ex parte
McCarthy, Lord Hewart, the Lord Chief Justice of England at the
time, gave a ruling which emphasised the importance of public
confidence in the administration of justice.4 Mr
McCarthy had been involved in a road traffic accident which led to
his prosecution for dangerous driving. Unknown to Mr McCarthy, the
clerk to the justices hearing the case was also a partner in a law
firm acting in a civil claim against him which arose out of the
same accident. The clerk retired with the judges, who returned to
convict Mr McCarthy. Upon learning of the clerk's position, Mr
McCarthy applied to have his conviction quashed. Despite accepting
that the conviction had not been influenced by the presence of the
clerk, Lord Hewart quashed the conviction highlighting that:
"It is not merely of some importance, but it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done."
Co-Authored by James Laddie QC
Footnotes
1 Gareth Brahams is managing partner of Brahams Dutt Badrick French LLP (BDBF) and was the solicitor with conduct of the Queensgate Investments v Millet case referred to in this paper. James Laddie QC, of Matrix, was instructed on that case as well as Tradition Securities v. Times Newspapers, J v. DLA and Fallows v. News Group Newspapers, also referred to in this paper.
2 The Employment Tribunal Rules of Procedure 2013, Sched.1.
3 [1913] UKHL 2.
4 [1924] KB 256.
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