Opinion on Limiting Access to Court Documents – Response to Law Gazette Article

Opinion on Limiting Access to Court Documents – Response to Law Gazette Article

In a recent article published in the Law Gazette London Solicitors Litigation Association raises concerns over court document access plans, the impacts of sharing court documents are discussed. 

 

The London Solicitors Litigation Association (LSLA) has raised several concerns regarding the proposed changes to the Civil Procedure Rule (CPR) 5.4C, which would allow non-parties immediate access to certain court documents like skeleton arguments and witness statements. While the LSLA supports open justice, it argues that the proposal involves practical challenges and potential risks that need more consideration.

Concerns Highlighted by The London Solicitors Litigation Association

Confidentiality: Witness statements often contain sensitive information. Making them readily accessible to non-parties could compromise the confidentiality and privacy of the individuals involved.

   

Timing: The proposals do not clearly define when documents would become accessible to non-parties, creating uncertainty about the accessibility timeline.

   

Collateral Use: Currently, there are specific provisions that restrict how parties can use witness evidence from other parties. Extending document access to non-parties without similar restrictions could lead to misuse, such as using the statements in unrelated legal proceedings.

Process: The proposed rule does not specify the process by which non-parties would obtain documents, leading to potential administrative and logistical issues.

   

Cost: There is no provision for who will bear the costs associated with making documents accessible, such as redaction, which could impose an unfair financial burden on the parties or their legal representatives.

Additionally, feedback from other sources, including the Expert Witness Institute and public comments (responding to the article), reflects a mix of support and concern. Some argue for greater openness and easier access to documents to enhance transparency in justice. Others worry about the implications for privacy, the administrative burden on court resources, and the potential for documents to be misused or taken out of context, especially on social media or in other legal contexts. Importantly, one of the first comments points out that courts are a matter of public record – “an open and transparent system of justice is a further precondition for establishing and maintaining the public trust in justice, which is a cornerstone of legitimacy of judiciary” (European Network of Councils for the Judiciary, 2018).

Overall, while the intention behind the proposal aligns with the principle of open justice, the LSLA and other commentators suggest that the complexities and potential unintended consequences warrant a more thorough review and careful consideration before any changes are implemented.

 

Applying Our Experiences Of Accessing Courts Data

With our experience over the last 8 years of digitising courts documents across the UK and Irish courts, we thought it would be useful to further add some practical experience and lessons learnt over the course of providing digital access to court documents.

The issues raised here by the LSLA are ones that have been debated in other jurisdictions for some time, like who bears the cost of redaction – which one can see many arguments in favour of, for example sensitive witness statements, commercially sensitive information, IP, victims, etc.

We work to ensure sensitive information is not included in data made available to certain categories of users, clients or researchers depending on their regulated right to do so. We are working on this as a way of ensuring that maximum open justice can be achieved yet not at the cost of those involved who should not be named or have their private data published. 

Balancing the benefits of improved transparency in litigation and prosecutions against the wide variety of regulations and legislation that pertain to different types of information processed in the justice system is a critical component of the work of improving open justice that Courts Data Solutions (CDS) and others take as a prerequisite. 

In fact, while the debate about improving access to courts documents is a laudable one, the greater and simpler challenge is to create meaningful access to even the types of documents and data which the litigators association (and court rules) take as a given. Much of the High Court is still opaque in this regard in practice, not to mention the rest of the justice system…. something that the innovations at CDS (already launched and continue to be developed) are designed to solve.

Progressing The Debate

Other jurisdictions have progressed their digital strategy beyond the UK, and there are lessons to be learned from their efforts. There is still some way to go, to evolve a centuries old legal system that has always been historically slow implementing new technologies.

 

However, even the UK Legal sector is now embracing digital technology to ease the burden of administration and provide an improved service to their clients. With the explosion of AI, where access to accurate source data is the foundation for exploiting the benefits of the rapidly emerging technology, this debate has only just begun, but one wonders whether there is even an option to stop the tide of digitisation.

 

Perhaps, the most effective way to ensure all the concerns of Court document access is to open up this debate even further, with the Ministry of Justice taking a central role in developing appropriate guidelines and frameworks that balance the need for transparency and access to sensitive information.

For more information about our products and services, please complete the contact form, and a member of the team will get back to you as soon as possible.

Find Out More

* indicates required