A technical interpretation of CPR 5.4C(1) by the court registry and the Ministry of Justice (MoJ) had previously restricted public access to the summary and detailed grounds for contesting a claim in a judicial review, while providing access to statements of case filed in private proceedings without application to the court. This came to a head in recent proceedings brought by Corner House Research and Campaign Against Arms Trade concerning the decision of the Serious Fraud Office (SFO) to drop the investigation of BAE Systems regarding allegations of bribery surrounding arms sales to Saudi Arabia. A freelance journalist sought disclosure under CPR 5.4C(1) of the acknowledgement of service and summary grounds for resistance to the claim filed by the SFO, but was refused by the court office on the ground that an ‘acknowledgment of service’ and ‘summary grounds for contesting the claim’ were not specifically defined as a ‘statement of case’ in CPR 2.3(1).
The media organisations, comprising the Financial Times, the Guardian and The Times newspapers, subsequently brought their own application, not only seeking access to the documents, but also wider declarations that:
- 111. an acknowledgement of service, summary grounds for contesting the claim and response filed in judicial review proceedings is a statement of case for the purposes of CPR 2.3(1); and
- 112. a party who is not a party to judicial review proceedings may obtain a copy of these documents pursuant to CPR 5.4C(1)(a).
The SFO did not oppose the application for access to acknowledgement of service and summary grounds in the proceedings and so access to the documents in question was quickly granted. However, the media organisations decided to continue the application to establish as a matter of principle that there should be open access to such documents in judicial review proceedings. The MoJ stepped in and opposed the declarations sought, claiming that, in accordance with the language of CPR 2.3(1), these documents were clearly excluded from the ambit of CPR 5.4C(1). It argued that it was not appropriate for the court to interpret rules purposively which clearly exclude a category of documents.
Collins found firmly in favour of the media organisations’ purposive construction of CPR 5.4C(1), finding that an acknowledgment of service and summary grounds was effectively a “defence”. In his judgment he held there was “no conceivable justification for the distinction” between court documents filed in private and public proceedings being sought to be drawn by the MoJ, particularly in light of the nature of judicial review proceedings, which calls into question the legality of the acts or omissions of a pubic body or official.
Collins stated: “...the whole purpose behind the change in the rules to give access to third parties to the statements of claim and defences was in the interests of justice to enable the media, and any member of the public, to be able to see how the courts were operating and to ensure that the public could look at and see why claims have been brought; why they have been rejected; why they were being allowed to proceed. It seems to me that it is, if anything, more important that there be public access to judicial review claims.”
The court further held that this interpretation of CPR 5.4C(1) had retrospective effect and therefore applied to all judicial review proceedings commenced after 2 October, 2006, being the date on which the rules first come to force. Recognising that there may be a danger in respect of defendants in judicial review proceedings who had previously filed documents containing sensitive material in reliance on the court office’s assertion that these documents would not be made available to the public, Collins said (in fact more in his role as head of the Administrative Court than as the presiding judge in the case) that where a request for access to those documents is sought, the parties to that case ought to have seven days in which to consider whether to apply to have the court filed sealed.
This decision demonstrates the court’s willingness to apply a purposive construction to the CPR in order to give effect to their intention. Attempts by the rules committee to examine this issue had failed to illicit satisfactory clarification of CPR 5.4C(1), a fact that did not go unnoticed by Collins. Accordingly, he had no reservations in declaring what he thought was the most logical and just interpretation.
For media organisations and the wider public, the decision means they are no longer customarily required to apply to the court for access to documents filed by defendants to judicial review proceedings, at considerable delay and expense to the applicant. It will also enable the public and the media greater and more balanced scrutiny of the public decisions which are subject to judicial review proceedings, and in particular ensure that comments made by such public bodies and officials to the public are consistent with the arguments they raise in court to defend their actions.
Annette Quesado is an associate in the media litigation group at Olswang. She acted for the newspapers, alongside partner Dan Tench, on the application before Mr Justice Collins.