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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> UXA v Merseycare NHS Foundation Trust  EWHC 3455 (QB) (21 December 2021)
Cite as:  WLR(D) 17,  4 WLR 30,  EWHC 3455 (QB)
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QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
B e f o r e :
|- and -
|MERSEYCARE NHS FOUNDATION TRUST
Charles Feeny and David Lawson (instructed by Hill Dickinson) for the Defendant
Crown Copyright ©
MR JUSTICE FORDHAM :
Part 1. Introduction
The Substantive Order
 UPON reading the written submissions of Marc Willems QC, Peter Edwards and Professor Conor Gearty QC (Hon) for the Claimant, and of Charles Feeny and David Lawson for the Defendant, and the parties' agreed draft consent order (8.10.21).
 AND UPON an anonymity order having been made by David Allan QC on 12th July 2017 and varied by Master Cook on 17th January 2018.
 AND UPON judgment in default having been entered by Master Cook on 12th April 2019, with damages to be assessed, in respect of the Claimant's claims of (i) sexual assault; (ii) breach of the common law duty of care/negligence; (iii) misfeasance in public office; (iv) breach of the Defendant's ongoing duty of providing care (also a breach of section 117 of the Mental Health Act, 1983); and (v) the misuse of private information/breach of confidence and breach of data protection.
 AND UPON the Defendant having filed admissions on 31 May 2019 (Bundle A page 36-37).
 AND UPON trial (three weeks) having been fixed for Monday 11th October 2021 of (a) the assessment of damages pursuant to the judgment in default and (b) the Claimant's claims for declarations of breach of the Human Rights Act 1998.
 AND UPON the evidence filed by the parties with the Court including an Agreed Joint Psychiatric Statement (28.5.21) written by the parties' expert Consultant Psychiatrists (Dr Daly and Dr Adshead).
 AND UPON the parties having reached terms of settlement in respect of damages and costs at a Mediation held on 4th October 2021.
 AND UPON the parties having reached agreement, subject to the Court's approval, on the declarations that are appropriate under the Human Rights Act 1998.
 AND UPON it being acknowledged by the parties that the damages include a substantial sum in respect of psychotherapy and related treatment.
 AND UPON the parties having confirmed that the terms of the financial settlement do not require Court Approval since it is common ground that the Claimant has litigation capacity.
 AND UPON it being agreed between the parties that:
(1) The agreed damages are paid and the Declaration agreed in full and final settlement of all claims made by the Claimant arising out of the issues in this litigation.
(2) The Claimant undertakes not to issue any further proceedings, or make any further claim, against the Defendant Trust its predecessors or any Director, officer, employee (past or present) in relation to the index events.
 AND UPON the following matters, which form the basis of the declaration in this Order, being agreed between the parties:
(1) The relationship between the Defendant's employee PD and the Claimant was an "abusive relationship" (see paragraph (5) below) which was (a) a criminal offence by PD contrary to section 38 of the Sexual Offences Act 2003 and (b) a gross breach of PD's duties as a nurse for which PD would have been dismissed (had he not resigned) and for which PD was struck off by the Nursing and Midwifery Council.
(2) There was a corporate failure by the Defendant to ensure (a) that it carried out adequate supervision of PD and (b) that he kept adequate records of his contact with UXA.
(3) The events in paragraphs (1) and (2) materially contributed to the Claimant's serious self-harming and her risk of suicide.
(4) The Defendant failed in a timely manner to report the abuse after its disclosure on 21st March 2016 as a Serious Untoward Incident Review through the Strategic Executive Information System, thereby failing to make timely notification of the abuse to the Care Quality Commission.
(5) PD's abusive relationship with the Claimant from July 2015 until 2 May 2016 was a breach of the Claimant's Article 2 and 3 rights and, given the consequent loss of contact with her daughter, a breach of the Claimant's Article 8 rights, which breaches are attributable to the Defendant as an emanation of the State.
 AND UPON the Court recording that the Claimant's written submissions before the Court were the Opening Submissions and Scott Schedule (27.9.21) and the Further Submissions (11.10.21); and that the Defendant's written submissions before the Court were the Skeleton Argument (29.9.21) and the Note on Draft Order (11.10.21).
 AND UPON the Court having regard to the case-law and commentary on declarations without trial (White Book 2021 p.1397) and the analogy in the context of breach of the HRA with CPR PD54A [§16.2].
 AND UPON the Court being satisfied on the basis of the written submissions of the parties, in light of the evidence and the authorities filed by them: (a) that it is appropriate to make this Order including the declaration of breaches of the Human Rights Act 1998 and (b) that it is not necessary to that end to hold a trial or further hearing, to hear oral evidence, to make any further determinations of fact, or to give a judgment.
 AND UPON the Claimant's representatives having raised (by email on 14.20.21) the issues, in relation to which there is current disagreement between the parties, of: (i) an interim payment of costs; and (ii) the application of CPR 31.22 to a document before the Court in this case.
BY CONSENT, IT IS ORDERED THAT:
Assessment of Damages
1. The Defendant do pay damages to the Claimant in the agreed sum of £1,700,000 (net of CRU, which is nil, and net of interim payments already made by the Defendant) within 21 days of the date of this Order.
Human Rights Act Declaration
2. It is declared that the Defendant acted unlawfully, for the purposes of section 6 of the Human Rights Act 1998, in a way which was incompatible with the Claimant's Convention rights pursuant to Articles 2, 3 and 8.
3. The Defendant do pay the Claimant's reasonable costs of, and incidental to, the action, to be the subject of detailed assessment if not agreed, on the following basis: (a) all reasonable costs of quantification of damages pursuant to the judgment in default of Master Cook dated 12th April 2019; and (b) in relation to the Claimants' claims pursuant to the Human Rights Act 1998, 70% of all reasonable costs, in addition to costs already ordered to be paid by the Defendant pursuant to previous Orders relating to the Human Rights Act claims.
Liberty to apply
4. The Claimant has liberty to apply, in writing on notice, by 4pm on 19.10.21: (a) for an order for payment of costs on account pursuant to CPR 44.2(8); and/or (b) for permission pursuant to CPR 31.22(1)(b) regarding use of disclosed documentation. The Defendant and any other person interested in the CPR 31.22(1)(b) application shall have until 4pm 22.10.21 to respond to any such application, and the Claimant shall have until 4pm 25.10.21 to reply to any such response. Any party or, in the case of CPR 31.22 any interested person, may apply in writing on notice to vary the terms of this paragraph of this Order.
5. Copies of all documents filed and served in accordance with paragraph 4 of this Order shall also be provided promptly by email to the clerk to Fordham J who if available will consider the applications pursuant to paragraph 4, in the first instance on the papers.
(1) The settlement does not require approval. It is agreed that the Claimant has litigation capacity. There is no need for any 'approval hearing'.
(2) The making of the declaration is a judicial act. The Court needs to be satisfied that the declaration is appropriate and that making it is necessary to do justice in this case. I am so satisfied. It is also appropriate that the Order should make clear on its face the basis on which the Court is satisfied. I am satisfied that this Order entails such clarity.
(3) The position is this. The agreed matters set out in the preamble to the Order and specifically (1)-(3) provide proper and sufficient support, in the circumstances of this case, for the HRA declaration matching agreed matter (5), which is the proper and sufficient scope of the declaration of breaches. The case has been properly compromised, on this basis, so far as HRA declarations are concerned. The sexual relationship which PD the Defendant's employee and the Claimant's mental health care coordinator pursued with the Claimant is accepted to have been "abusive". It is accepted that the abusive relationship, and the Defendant's corporate failure of supervision of PD, each materially contributed to serious self-harm (Article 3) as well as suicide risk (Article 2), and a knock-on consequence of the Claimant's loss of contact with her daughter (Article 8). The parties have, in my judgment, properly and convincingly identified these accepted matters as supporting their agreed declaration of breaches of the HRA. Having regard to the materials, including the admissions and joint experts' statement referred to in the recitals to this Order, and including the parties' submissions before the Court, I am satisfied that there are sound reasons to accept rather than to go behind or decline to accept the matters which the parties have agreed. I am also satisfied that the severity of the consequences and risks have appropriately been recognised by the parties as meeting the relevant legal thresholds in relation to the Convention rights, and that the Defendant cannot (not least since it does not now seek to) discharge the onus of showing Article 8(2) justification.
(4) I have been able to come to these conclusions and embody them in this Order by consideration on the papers. I am satisfied that I can and should make this Order without holding a hearing, without making further or ancillary findings, and without giving a judgment. The parties have compromised the HRA claims. It has not been and is not necessary or appropriate for the Claimant, or anyone else, to give evidence or be cross-examined. This is not a case in which there are disputed issues requiring resolution going to the severity of admitted HRA breaches, or outstanding issues needing to be resolved, or unresolved questions relating to remedies: cf. Wilson  UKIPTrib IPT/11/167/H (30.9.21) at §§15-16, 348. It is in the public interest that parties should be able, in an appropriate case and on an appropriate basis, to resolve HRA issues and recognising HRA breach, in a manner obviating the need for hearings and avoiding unnecessary further costs. That has happened in this case.
(5) Late in the day, but prior to the making of the Order, the Claimant's representatives have raised two questions on which there is not agreement: one as to payment on account of costs (CPR 44.2(8)); the other as to whether a particular disclosed document is to be deemed to be in the public domain (CPR 31.22(1)(a)). I have formed no view, as yet, on either of these matters. I am satisfied that this Order should now be made, but with provision for applications and written submissions (including any notified agreement). That allows the parties to address the position, to agree what can be agreed, and to assist the Court. Nobody and nothing is shut out. In relation to CPR 31.22, I add these observations. There has not as yet, in any event been on my part any "hearing held in public" (CPR 31.22(1)(a)). I have noted the general provision for the Court's permission (CPR 31.22(1)(b)). By giving liberty to apply for an application for permission to be made, I am satisfied that the parties can address me on all and any relevant considerations, with any relevant materials and authorities. This would include any remaining question whether, on analysis, permission is needed. It would also include any consideration of open justice which is said to arise in the context of this case and of determination of HRA declarations made without a hearing (as could happen equally in judicial review: CPR PD54A §16.2). Any interest in that issue on the part of the press can be accommodated within the terms of the Order, referring to interested person(s). Having circulated this Order in draft, neither party disagreed with this course.
The Satellite Issue (and its determination without a hearing)
The Claimant's Proposed Order
UPON the Claimant having invoked the liberty to apply contained in paragraph 4 of the Order of Mr Justice Fordham, dated 15 October 2021, (b) for permission to use certain specified documents for purposes other than the proceedings.
AND UPON the Court exercising its inherent jurisdiction to allow access to Court Documents in order to promote Open Justice in order to allow the Public to understand the Declaration made pursuant to s.6 of the Human Rights Act 1998 and the matters behind the Judgment in Default.
Then this Proposed Operative Paragraph:
The parties have permission, pursuant to CPR 31.22 and under the inherent jurisdiction, to use the following documents other than for the purposes of the proceedings herein, including to disclose the same to third parties (including media organisations): (i) The Claimant's Opening Submissions and Scott Schedule, dated 27 September 2021; (ii) The Claimant's Further Submissions, dated 11 October 2021; (iii) The Defendant's Skeleton Argument, dated 29 September 2021; (iv) The Defendant's Note on the Draft Order, dated 11 October 2021; (v) The Agreed Joint Psychiatric Statement of the parties' expert Consultant Psychiatrists, Dr Daly and Dr Adshead, dated 28 May 2021; (vi) The judgment in default entered by Master Cook on 12 April 2019; (vii) the Defendant's Admissions dated 31 May 2019; (viii) The NICHE Report, of an 'Independent investigation into care and treatment of a service used in Wigan, dated 17 March 2017, in the anonymised form in which it appears at page A1799 of the Hearing Bundle [and excluding the Appendices].
The Claimant's Proposed Order is opposed by the Defendant.
The Defendant's Proposed Order
6. [A] non-party may not inspect or obtain a copy of any document on or from the Court file (other than this order duly anonymised as directed) without the permission of a Master or District Judge. Any application for such permission must be made on notice to the Claimant and the Defendant, and the Court will effect service. The file is to be retained by the Court and marked "Private".
The Anonymity Order was made on 12 July 2017, varied on 17 January 2018 (see Substantive Order Recital ). Anonymity protection had been sought by the Claimant by application on 8 June 2017. The Order of 12 July 2017 provided anonymity for the Claimant and her daughter, as follows: that the Claimant and her daughter should be anonymised in any statement of case, in other documents filed in the case, and in any judgment or order; that their address in those documents should be given as that of the Claimant's solicitors; that any such documents previously filed should be replaced with compliant copies; that the original documents disclosing these names or address be placed in a sealed, marked envelope; that the file be retained and marked as private; and that reporting restrictions apply to the disclosing of any information that may lead to the subsequent identification of the Claimant or her daughter. Paragraph 6 of the anonymity order is as above (without the underlined words). Finally, the anonymity order gives liberty to apply to any non-party affected by it, to have the Order set aside or varied "on notice to all parties".
The proceedings and their settlement
The judicial act and its basis
satisfied on the basis of the written submissions of the parties, in light of the evidence and the authorities filed by them that it is appropriate to make this Order including the declaration of breaches of the Human Rights Act 1998
I recorded (Recital ) that "the written submissions before the Court" were: the Claimant's Opening Submissions and Scott Schedule (27.9.21); the Claimant's Further Submissions (11.10.21); the Defendant's Skeleton Argument (29.9.21); and the Defendant's Note on Draft Order (11.10.21). As to "evidence", this was located within a Main Bundle of some 2197 pages. As to "authorities", I had an Authorities Bundle of some 5538 pages, and further authorities were cited in the post-settlement written submissions. I now have yet further authorities, in the post-Order written submissions filed by the parties in relation to the satellite issue. I recorded (Recital ) that there had been agreement between the parties as to five matters which formed the basis of the agreed declaration. That recital was based on an agreed Appendix ("Declarations under the Human Rights Act as agreed between the parties") in an agreed "Final Order and Human Rights Act Declarations", filed by the parties on 8 October 2021. I set out my reasoning (Reason (3)), in which I referred to "the admissions" filed on 31 May 2019 (Recital ), to the "joint experts' statement" described as the "Agreed Joint Psychiatric Statement (28.5.21) written by the parties' expert Consultant Psychiatrists (Dr Daly and Dr Adshead)" (Recital ), and to the "submissions before the Court" (Recital ). I made the HRA Declaration of HRA breaches without a hearing, without making any further findings of fact, and without giving a judgment. I recorded why I had taken that course (Recital ; Reason ).
Part 2. The Legal Landscape
Declarations 'by consent'
Judicial determinations without a hearing
Agreed final order. 16.1 If, prior to judgment being given on a claim the parties agree the terms of a final order to be made disposing of the claim, the claimant shall file 3 copies of the proposed agreed order together with a short, agreed statement of the matters relied on as justifying the proposed agreed order and copies of any authorities or statutory provisions relied on. Both the draft order and the agreed statement shall be signed by all parties to the claim. 16.2 The court will consider the documents referred to in paragraph 16.1 and will make the order if satisfied that the order should be made. 16.3 If the court is not satisfied that the order should be made, a hearing date will be set. 16.4 Where the agreement relates to an order for costs only, the parties need only file a document signed by all the parties setting out the terms of the proposed order.
Under this procedure (previously §17 of PD54A), the Court may be satisfied that the Order agreed between the parties should be made, based on having considered the documents (PD54A §16.2). A hearing will be convened if the Court is not satisfied on the papers that the order should be made (PD54A §16.3). Despite the language ("will make the order if satisfied") the judicial review Court could certainly decide that, although it is satisfied on the papers that the agreed order should be made, nevertheless there should be a hearing. The judicial review Court may convene a hearing where one of the parties to the proposed consent order has identified a good reason for the agreed order to be the subject of a hearing (a point which Walker J explained in R (Elmes) v Essex County Council  EWHC 2055 (Admin)  1 WLR 1686 at §149). Where the Order is made without a hearing, the judicial review Court may decide to give a judgment, listed for hand-down in open Court. Or the judicial review Court may issue an Order with reasons. Such an Order may be the subject of comment in the public domain. An example is the note on my Order in R (Kauser) v Secretary of State for Work and Pensions CO/987/2020 (7.10.20) in the Journal of Social Security Law (2021) JSSL 28(1) D21, that Order having declared as was agreed between the parties that the Secretary of State had acted unlawfully by failing to conduct work capability assessments before deciding students' claims for universal credit. In judicial review cases, it is recognised that consent orders are only approved if scrutinised by a person with judicial powers who is satisfied that the order is satisfactory, given the nature of the supervisory jurisdiction being exercised by the Court (see Elmes at §§74, 193).
Judicial review may be decided without a hearing. 54.18. The court may decide the claim for judicial review without a hearing where all the parties agree.
That means the judicial review Court can determine public law issues which are disputed between the parties, and can make a substantive order reflecting the Court's determination of the judicial review claim, provided that the parties are agreed on the Court determining the disputed claim without a hearing. Another example of a determination without a hearing, not from judicial review but involving the Administrative Court, concerns the making of orders under the Proceeds of Crime Act (see the White Book 2021 Vol. 2 at §3K-6, discussing National Crime Agency v Simkus  EWHC 255 (Admin)  1 WLR 3481), which became the "general practice" in those cases before being reflected in any provision of the CPR or any CPR PD (Simkus at §§19-20). In that context, emphasis has been placed on the Court Order embodying reasons (Simkus at §§26, 48) and involving conscientious consideration (Simkus at §26).
An "analogy" with PD54A §16.2
Some relevant rules
Any undertaking, whether express or implied, not to use a document for any purposes other than those of the proceedings in which it is disclosed shall cease to apply to such a document after it has been read to or by the Court, or referred to, in open Court, unless the Court for special reasons has otherwise ordered on the application of a party or the person to whom the document belongs.
CPR 31.22 provides:
Subsequent use of disclosed documents and completed Electronic Documents Questionnaires. (1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where (a) the document has been read to or by the court, or referred to, at a hearing which has been held in public; (b) the court gives permission; or (c) the party who disclosed the document and the person to whom the document belongs agree. (2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public. (3) An application for such an order may be made (a) by a party; or (b) by any person to whom the document belongs. (4) For the purpose of this rule, an Electronic Documents Questionnaire which has been completed and served by another party pursuant to Practice Direction 31B is to be treated as if it is a document which has been disclosed.
In light of the post-Harman rule change, it is unsurprising to find repeated citation of observations found within Lord Scarman and Lord Simon's dissent in Harman: see eg. SmithKline at p.9; Law Debenture at §§23, 26; and Dring at §37.
(1) On the eve of the trial (the afternoon of pre-reading day 2), Connaught notified its intention to surrender the patent. The trial was postponed for a day. On what had been going to be day 2 of the trial (7.5.98), there was a hearing in open court. Laddie J stated that he had read the relevant papers: "I have read it all". SKB's barrister asked for a revocation order. Connaught's barrister said: "I am not here to consent to an order for revocation, but if your Lordship believes that that is the appropriate order in the circumstances, then so be it". Laddie J proceeded to give a short judgment ( FSR 284), based on what he had pre-read. He explained that it was open to the Court to order revocation "if, having regard to what is pleaded and the material which I have seen, that is the appropriate course". He said he had "come to the conclusion that in the absence of any resistance from [Connaught], the petition" for revocation was "well founded" and that "the proper course" was "to order revocation forthwith". Laddie J later said that the hearing had "taken a few minutes". Lord Bingham CJ said it was "very short indeed" (p.13).
(2) There were then these developments. (i) About a week after the hearing (13.5.98), Connaught wrote to ask SKB to destroy the documents "marked as confidential", and which had therefore been covered "by the confidentiality agreement between the parties" (p.6). (ii) Ten weeks after the hearing (21.7.98), solicitors for Chiron, a company involved in opposing Connaught's patent in proceedings in the European Patent Office (EPO), wrote to SKB and Connaught requesting copies of the skeleton arguments, the witness statements and the experts' reports which had been before Laddie J. Connaught declined. (iii) SKB sent Chiron both parties' skeleton arguments and both parties' evidence referred to in the reading list which had been provided to the judge. (iv) Subsequently, SKB filed the parties' expert reports and witness statements in the Japanese Patent Office (JPO).
(3) Against that background, SKB made two alternative applications by notice of motion. Application (a): for "a declaration that it was free to use" certain documents on the basis that they had been "read to or by the court, or referred to in open court". Alternatively, application (b): for the court's permission ("leave") to use those documents, for the purposes of opposition proceedings in the EPO and the JPO. Applications (a) and (b) arose in the context of the then RSC O24 r14A (the predecessor to CPR 31.22) (see §20 above). Applications (a) and (b) related comprised four categories of documents: (A)-(D) (p.7). The Court of Appeal said of all these documents that they were "documents supplied or disclosed by Connaught to [SKB] pursuant to a court order in the course of [the] litigation" and "documents received from Connaught" (p.3). The Court of Appeal also explained that they were all documents being relied on by SKB in its legal challenge to the patent. Documents (A)-(D) were as follows (pp.7, 12-13). (A) were documents, disclosed by Connaught in the proceedings (p.12), annexed to SKB's expert's report (Professor Findlay) and discussed in that report. (B) was a scientific report of a workshop, annexed to a Civil Evidence Act (CEA) notice, and included in the judge's reading list (p.13). (C) were scientific documents including Connaught's internal documents, disclosed by Connaught in the proceedings (p.12), and annexed to another CEA notice. (D) were documents of Connaught relating to the stability of pertactin, being Connaught's own records of its laboratory results, referred to in Professor Findlay's report (p.13).
(4) Applications (a) and (b) were heard by Laddie J (21.20.98) and he gave a judgment (30.10.98) refusing them both. He refused application (a), essentially because (pp.7-8): there had been no "contested oral hearing"; his decision had been "as a result of what I had read in my private room"; Connaught's notified intention to surrender the patent meant "none of the skeletons, witness statements, expert reports or discovery documents were going to be read or referred to" in court, the only discussion being of "the patent itself"; "the only question of substance was how to formally terminate the proceedings as quickly as possible and without generating ongoing costs"; and only "a small number of the documents referred to were identified in the reading list". This refusal of application (a) was what SKB challenged by way of appeal to the Court of Appeal. Laddie J also refused application (b), which SKB did not pursue in the Court of Appeal (p.7). When later told about the documents which SKB had sent to Chiron and had filed in the JPO, Laddie J indicated a "preliminary view" that those disclosures were a break of SKB's "obligation of confidence" and "a contempt of court". In consequence, SKB undertook to retrieve the documents it had sent to Chiron and the JPO (p.8).
(5) In the light of all of this, SKB made a third application (c) to Laddie J. Application (c) was for permission (leave) to use three classes of document (p.8). The first of those three classes of document was SKB's particulars of objection, a document which had appeared in the reading list for the trial. In a further judgment (21.1.99), Laddie J granted application (c), in relation to all three classes of document (p.8). As to the first class of document (the particulars of objection), Laddie J gave two reasons. The first reason was that the particulars of objection were in a re-amended form and had been referred to in open court at the hearing "on the application to amend" the particulars of objection, so that O24 r14A was applicable. The second reason was that the Court's permission (leave) would have been appropriate, had O24 r14A not applied, because "the nature of the attacks raised against the patent" were "prima facie matters which should be made known to the public" so that the Court's "public revocation of the patent can be understood". There can be no doubt that Laddie J's second reason for allowing SKB's application (c) was about information being capable of being "made known to the public" in order to understand the decision which the Court had made. There was no appeal by Connaught to the Court of Appeal against this decision by Laddie J.
(1) There were five identifiable situations (SmithKline p.12) in which the implied undertaking came to an end (absent an order to the contrary, made for "special reasons"), because a compulsorily-disclosed document has been "read to or by the Court, or referred to, in open court", namely: (a) when material parts of the document are read out by Counsel in open court; (b) when Counsel in open court draws the judge's attention to the document, and the judge in court reads the document to himself or herself; (c) when the judge has pre-read a document, to which Counsel's skeleton argument refers, and then Counsel has incorporated that skeleton argument in oral submissions in open court; (d) when the document is referred to by counsel in open court; and (e) when the document is referred to by the judge in open court. The reason why all these situations were included is referable to what would otherwise have happened at the hearing. The "changed environment of practice" was no longer for Counsel to read the documents aloud in open court; but rather for the judge to read materials outside the courtroom; and for Counsel's submissions to be summarised in a skeleton argument. If it were not for these changed practices, "it would be necessary" for every "full submission" to be made "orally" and for Counsel in open court to "read aloud" or refer the judge to "each page of the material relied on". If those things had happened, the implied undertaking would have come to an end.
(2) It was necessary to focus on the "reality" of what took place at the short hearing before Laddie J (p.12). The position at the hearing was that documents (A) and (C) were being relied on in Professor Findlay's expert report, on which SKB was relying to challenge the patent. Documents (B), which were also being relied on by SKB to challenge the patent, were in the reading list for the judge and referred to in SKB's skeleton argument. Documents (D) were also being relied on by SKB to challenge the patent, were relied on in Professor Findlay's expert report, and were referenced in SKB's skeleton argument. Documents (A) to (D) were all material which Laddie J "must be taken to have read and absorbed" (pp.12-13). The judge's decision was "plainly based on the material before him" which included documents (A) to (D) (p.14). Because, at the hearing, SKB "did not accept" Connaught's offer to surrender the patent but "asked for revocation" and because the judge only had power to revoke "on certain grounds", the judge could only make the order that he did if "he was of the opinion that the grounds or some of them were made out" (p.13). The hearing was "not a formality". His task was "much easier and shorter" because of the absence of "opposition" from Connaught. The reason why the hearing was "very short indeed" because the judge "said he had read all the material" and "made his decision to revoke having regard to what was pleaded and the very large quantity of material which he had read", which "enabled him to conclude, in the absence of resistance from Connaught, that the petition for revocation was well-founded". This "compendious reference", by the judge at the hearing, to "what he had read" was "no less of a reference" because of "the thoroughness of his preparation" which "relieved him of the need to ask for the grounds of objection to be expressly outlined to him". These were documents "referred to in open court". There was "reference to the documents in open court" (p.14). In other words, this was "a judicial determination of the revocation issue": see Law Debenture at §33. That conclusion too was referable to what would otherwise have happened at the hearing, in the absence of the changed environment of practice. If "the judge had come into court without familiarising himself with the case at all, it would have been necessary for [SKB]'s counsel to outline the grounds of objection" and "draw the judge's attention, however briefly, to the material relied on to support it". The judge's decision "based on what he had read" was "no less a reference" to the documents because the "thoroughness of his preparation relieved him of the need to ask for the grounds of objection to be expressly outlined to him" (p.13). As observed in Law Debenture (at §33), what would make "access" to documents like skeleton arguments or written openings "justifiable" in a scenario like SmithKline would be "the use which the judge ultimately made of them to arrive at his decision", namely "to proceed as if there previously had been a hearing at which the case had been orally opened or at least at which counsel had put in the submissions after orally introducing the issues", so that "the effect of the judge's reliance on the submissions to reach his decision" had "the effect" of a "substitution" where "written submissions" are "deployed at the hearing in substitution for oral argument".
(3) In relation to both parties' skeleton arguments and both parties' evidence referred to in the reading list (as sent by SKB to Chiron), and as to the parties' expert reports and witness statements (as filed by SKB with the JPO), the same conclusions applied "by parity of reasoning" (p.14). They were materials "which the judge had read" and "on which SKB relied in seeking revocation of the patent" and "on which the judge must be taken to have relied when ruling that the patent should be revoked".
(4) It was important to understand what was not happening at the hearing before Laddie J. If, at that short hearing before the judge, SKB had accepted Connaught's offer to surrender the patent and the judge "without more" had dismissed SKB's petition "by consent" and "on that basis", that would have been different. The implied obligation on SKB would not have ended. It would not have mattered "how much of" the material the judge "had read" or "how carefully". It was "significant that the judge's order was not made by consent" (p.14). This part of SmithKline is encapsulated at §28 of Law Debenture (§24 below). That conclusion was also referable to what would otherwise have happened, in the absence of the changed environment of practice. "Even under the old practice", in those circumstances, "there would have been no argument and no citation of the materials relied on" by SKB (p.13).
(5) Rejecting Connaught's argument that, if covered by r.14A, there were "special reasons" to extend the implied obligation, the Court reasoned as follows. The confidentiality agreement was "a relevant matter to consider", but there were no "special reasons" to justify the order sought by Connaught. Although marked "confidential", and although it was understandable "why Connaught would wish to maintain the confidentiality of their documents", there was "a significant public dimension" to avoiding decisions in patent "proceedings elsewhere" being made "in ignorance of the grounds which led the Patents Court in this country to hold the patent invalid" (p.15). It was "not suggested that the documents contained any trade secrets or information of a truly secret nature" (pp.14-15). That conclusion was another one which was referable to what would otherwise have happened, this time positing "a full hearing" (p.15). Had there been "a full hearing", Connaught could not say that "any part of it would have been conducted in camera" (i.e. in private). Although Connaught "should not be in a worse position than if the materials on which Laddie J relied on making his decision had been read aloud in open court" but, in the Court of Appeal's view, "nor should they be in a better position" (p.15).
Law Debenture (2003)
although (i) for the purposes of the rules "the 'records of the court' must refer to those documents and records which the court itself keeps for its own purposes. It cannot refer to every single document generated in connection with a case and filed, lodged or kept for the time being at court." (§23) nonetheless: (ii) "There can be no doubt at all that the court rules are not exhaustive of the circumstances in which non-parties may be given access to court documents. They are a minimum and of course it is for a person seeking to persuade the court to allow access outside the rules to show a good case for doing so. However, case after case has recognised that the guiding principle is the need for justice to be done in the open and that courts at all levels have an inherent jurisdiction to allow access in accordance with that principle" (§34). (iii) "The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question. The extent of any access permitted by the court's rules is not determinative (save to the extent that they may contain a valid prohibition). It is not correct to talk in terms of limits to the court's jurisdiction when what is in fact in question is how that jurisdiction should be exercised in the particular case." (iv) That whilst " the court has the power to allow access, the applicant has no right to be granted it (save to the extent that the rules grant such a right). It is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle. In this respect it may well be that the media are better placed than others to demonstrate a good reason for seeking access. But there are others who may be able to show a legitimate interest in doing so." (§45). (v) "The court has to carry out a fact-specific balancing exercise. On the one hand will be 'the purpose of the open justice principle and the potential value of the information in question in advancing that purpose'. On the other hand will be 'any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others'. " (§§45-46). (vi) "There may be very good reasons for denying access. The most obvious ones are national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality." (§46). (vii) "Also relevant must be the practicalities and the proportionality of granting the request. It is highly desirable that the application is made during the trial when the material is still readily available, the parties are before the court and the trial judge is in day to day control of the court process. The non-party who seeks access will be expected to pay the reasonable costs of granting that access." (§47). (viii) "In short, non-parties should not seek access unless they can show a good reason why this will advance the open justice principle, that there are no countervailing principles of the sort outlined earlier, which may be stronger after the proceedings have come to an end, and that granting the request will not be impracticable or disproportionate." (§47). (ix) Lastly, "A clean copy of the bundle, if still available, may in fact be the most practicable way of affording a non-party access to the material in question, but that is for the court hearing the application to decide." (§48).
The Counterbalancing Concern
(1) Many key changes in "environment" involve moves from the spoken word to the written word. In Dring (at §2), Lady Hale said this:whereas in the olden days civil proceedings were dominated by the spoken word - oral evidence and oral argument, followed by an oral judgment, which anyone in the court room could hear, these days civil proceedings generate a great deal of written material - statements of case, witness statements, and the documents exhibited to them, documents disclosed by each party, skeleton arguments and written submissions, leading eventually to a written judgment.
(2) A concern, expressed by the Court of Appeal in a 1999 case (see Dring at §29) was this:It is of great importance that the beneficial saving in time and money which it is hoped to bring about by such new procedures should not erode the principle of open justice.
(3) As Lord Woolf MR had put it in a 2000 case (see Dring at §30):As a matter of basic principle the starting point should be that practices adopted by the courts and parties to ensure the efficient resolution of litigation should not be allowed to adversely affect the ability of the public to know what is happening in the course of the proceedings.
(4) In SmithKline, Lord Bingham CJ had said this (p.12):For reasons which are very familiar, it is no longer the practice for counsel to read documents aloud in open court or to lead the judge, document by document, through the evidence. The practice is, instead, to invite the judge to familiarise himself with material out of court to which, in open court, economical reference, falling far short of verbatim citation, is made. In this new context, the important private rights of the litigant must command continuing respect. But so too must the no less important value that justice is administered in public and is the subject of proper public scrutiny.
(5) Counterbalances to secure open justice in the context of the change from oral to written process will also avoid having to revert to an oral process which would defeat the aims of changes which are intended to save time and money and promote the efficient resolution of litigation. As the Court of Appeal (Toulson LJ) had observed in a case in 2012 (see Dring at §37):Requiring [documents referred to in open court] to be read out would defeat the purpose of making hearings more efficient.
(6) It is against the background, of the change from oral submissions to written submissions, that (as seen in Law Debenture) it has come to be recognised that (see Dring at §31):the court ha[s] inherent jurisdiction to allow access to all parties' skeleton arguments, not just the opening submissions, provided there was an effective public hearing at which they were deployed , and the same would apply to other advocates' documents provided to the court to assist its understanding of the case, such as chronologies, dramatis personae, reading lists and written closing submissionsThis is because skeleton arguments and written submissions constitute "a substitute mode of submission" (Law Debenture at §22) and are "deployed at the hearing in substitution for, or as auxiliary to, oral argument" (at §33).
(7) In the same way, it was because of the change from evidence in chief being delivered orally, to witness statements standing as evidence in chief (CPR 32.5(2)), that CPR 32.13(1) was introduced to allow a right to inspect such a witness statement during a trial (Dring at §27), so that:those observing the proceedings in court [are] put back into the position they would have been in before that practice was adopted.However, since there is an inherent jurisdiction to determine what the open justice principle requires, and the court's rules on access to court documents are not determinative (Dring at §41), it has been recognised that there is "no reason why access to witness statements taken as evidence-in-chief should not be allowed under the inherent jurisdiction after the trial", and that "what applied to witness statements should also apply to experts' reports which are treated as their evidence-in-chief" (Dring at §31).
(8) It is also against the background of the change from oral content to written content that the inherent jurisdiction extends to allowing access to documents relied on at a hearing, where they are (Dring at §32)documents which were likely to have been read out in open court had the trial been conducted orally.This addressed Lord Bingham CJ's concern in SmithKline about receiving evidence without it being read in open court, as having "the side effect of making the proceedings less intelligible to the press and the public" (Dring at §37).
(9) As it was put in SmithKline at p.15 (in the context of O24 r14A and third party access to documents "referred to in open court"), a litigant resisting that access:should not be in a worse position than if the materials on which [the judge] relied in making his decision had been read aloud in open court, but nor should they be in a better position.
(10) What all of these references have in common is that they identify a concern about ensuring that there are counterbalances to secure that open justice is not undermined, when Courts adopt procedures especially involving the use of the written word in place of the spoken word intended to discharge the judicial function in a way which promotes efficiency and the saving of costs.
The open justice principle and access to documents
the courts have accepted that they have an inherent jurisdiction to allow access to materials used in the course of court proceedings and that the rationale for doing so is the constitutional principle of open justice
Lady Hale went on to explain (at §41) that:
unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what [the open justice] principle requires in terms of access to documents or other information placed before the court or tribunal in question.
In Harman (at 316) Lord Scarman and Lord Simon linked "public knowledge of the evidence and arguments of the parties" to "public policy in the administration of justice". As to the purposes of the constitutional principle of open justice (Dring at §§42-43):
The principal purposes of the open justice principle are two-fold and there may well be others. The first is to enable public scrutiny of the way in which courts decide cases to hold the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly
But the second goes beyond the policing of individual courts and judges. It is to enable the public to understand how the justice system works and why decisions are taken. For this they have to be in a position to understand the issues and the evidence adduced in support of the parties' cases.
Part 3. Analysis
Prompt application to the trial judge
It is highly desirable that the application is made during the trial when the material is still readily available, the parties are before the court and the trial judge is in day-to-day control of the court process.
Lady Hale contrasted the position "after the proceedings are over" when "the court will probably not have retained [the material]" and when "the burden placed upon the trial judge in deciding what disclosure should be made may have become much harder, or more time-consuming, to discharge". These same practical considerations mean that, where the parties have concerns as to the position regarding documents filed in the proceedings, and where a trial judge is seized of the case and has control of the court process, and has the papers, it is right in principle to raise those concerns with the judge at that time. In this case, the parties have commendably done so.
CPR 31.22(2)(1)(a) does not apply
"Access" is sought by the Claimant, a party
the common law by its recognition of the principle of open justice ensures that the public administration of justice will be subject to public scrutiny. Such scrutiny serves no purpose unless it is accompanied by the rights of free speech, ie the right publicly to report, to discuss, to comment, to criticise, to impart and to receive ideas and information on the matters subjected to scrutiny. Justice is done in public so that it may be discussed and criticised in public. Moreover, trials will sometimes expose matters of public interest worthy of discussion other than the judicial task of doing justice between the parties in the particular case.
They then said this as to the position of a litigant and their advisers:
It cannot be desirable that public discussion of such matters is to be discouraged or obstructed by refusing to allow a litigant and his advisers, who learnt of them through the discovery of documents in their action, to use the documents in public discussion after they have become public knowledge.
If the open justice principle can be relevant in the context of a party to proceedings and what use can be made of disclosed documents, there is no reason why the open justice principle should not be relevant in other contexts where a party is seeking to invoke the inherent jurisdiction so as to be able to supply other court documents to third parties such as the media.
Key points made by the Claimant
Key points made by the Defendant
Access and the Judgment in default (document (vi))
Access and the Substantive Order
Why access to documents is being sought
An entirely legitimate interest
(1) The Claimant has convincingly demonstrated in the explanation given, so far as the HRA Declaration is concerned, "how access will advance the open justice principle" (Dring §45, Dring Proposition (iv): see §§26-27 above). By means of the Substantive Order, I have decided a case. I have performed a judicial act, discharging my public judicial function. I have given reasons. But I have not given a judgment. Access to documents in this case can promote the "public policy in the administration of justice"; it can promote "public scrutiny of the way in which courts decide cases"; it can promote effective "policing" of myself as a judge dealing with this case in the way that I have; it can serve "to hold" me as a judge "to account" for the decision that I have made; it can serve to inform whether in this case I have been "doing my job properly"; it can "enable the public to have confidence"; it can serve to "enable the public to understand how the justice system works" and "why decisions are taken", by being "in a position to understand the issues and the evidence adduced in support of the parties' cases" (see §27 above). All of these points arise, moreover, in the context of a judicial determination made without a hearing (§§12-16 above), and without a judgment of the Court. There is an "entirely legitimate interest" in my decision and decision-making in this case and its implications for the system of justice being scrutinised, commented upon, criticised, disapproved of, or approved of. It is important that a judge embraces the prospect of scrutiny, and facilitates its effectiveness.
(2) Secondly, all of this arises in a situation where this is the Claimant's case, based on her lived experience of what has happened to her, where she was claiming violation of her human rights under the HRA, and where she has a substantive determination of that case by this Court. It would be different, if and insofar as documents being sought had been prepared for a judicial evaluation of quantum of damages. Quantum of damages was settled. There was no need for judicial approval. Like the scenario discussed in SmithKline (§23(4) above), this part of the case was dealt with "by consent" and "without more", where it did not matter what material I had read, and where there was never going to need to be argument and the citation of materials. For the same reasons, I am not convinced that anything is added by or anything can be based on the additional reference (Claimant's Proposed §2) to public understanding of the "matters behind the Judgment in Default". That was a judgment based on the Defendant's "default" in the proceedings. So far as concerns the HRA Declaration, the scrutiny of the public administration of justice is alongside the Claimant's entirely legitimate interest in being able (in the words of Lord Scarman and Lord Simon: §33 above) "to report, to discuss, to comment, to criticise, to impart and to receive ideas and information" about her case, in which the Court has made a judicial determination; by using documents in "discussion" including "public discussion" of the "justice in the particular case", but also in "matters of public interest worthy of discussion" which these proceedings have served to "expose".
(3) Thirdly, all of this arises in a context where there is an Anonymity Order (see §8 above). That Order has been made because it has been shown to be necessary. It follows that any discussion of this case would need to be consistent with and compliant with that Anonymity Order. The Claimant and her representatives are well aware of that. The Claimant will be able to speak about this case, within the confines of and consistently with, the anonymity protection which she has secured from the Court. On the other hand, in respect of no other person has there in the 4½ years since the Anonymity Order was made (12.7.17) been any application to this Court for any order involving any restriction or prohibition, still less one seeking to demonstrate that some other person has a justified reason why anonymity is necessary.
(4) Fourthly, the application made by the Claimant in relation to access to court documents is a targeted one. There are four sets of written submissions and four other specified documents. The two documents which needed anonymised initials to be regularised have been filed with the Court. There is no problem of practicality, and there has conspicuously been ensuring proportionality (Dring §47; Dring Proposition (vii): see §§26-27 above). The documents are identified as principal documents in the case, relevant to the HRA Declaration. Putting this into context, the Main Trial Bundle alone contained 2197 pages. There were, within it, 3 Joint Statements of Experts (Psychiatry, Care and Health & Welfare) (Main Trial Bundle pp.301-320); 30 expert reports (pp.321-1150); 18 witness statements (pp.1151-1798); and 4 items of other documentation (pp.1799-2197). In preparing for the trial, I needed to commission for my Judge's room at the Manchester Civil Justice Centre five 'stowaways' (units of cardboard shelving), each able to hold 6 lever arch files, all of which were printed double-sided. Once all submissions on the satellite issue had been received and I had been able to give them a 'first read', I was able to prepare from the documents filed by the parties and from the Main Trial Bundle the materials which are the subject of, and relevant to, this satellite issue (and the remaining costs issue). Leaving aside authorities, these fit within a single lever arch file, within which are the eight documents (including the two newly redacted versions), together with all the submissions on the court orders, pleadings and the relevant email traffic. The targeting of the request is illustrated by the portability of the materials, back to London, for my deliberating on the issues and then the preparation of this judgment.
(5) Fifthly, all of this operates in a way which is even-handed between the parties. The Order sought does not seek to place the Claimant at an advantage over the Defendant as to court documents to which she can provide access. The Claimant's Operative Paragraph would involve the Court ordering that "the parties" have the Court's "permission" to "use" the documents. The documents include the written submissions of Claimant (documents (i) and (ii)) and of the Defendant (documents (iii) and (iv)) and the expert statement is a Joint Statement (document (v)). The design of the proposed order would mean that, if and insofar as points are made in the public domain about this case, the Defendant would in principle be able to be making them or responding to them, on equal terms, respecting the Anonymity Order. The Defendant would be able to provide access to the documents to any person who it considers ought to be able to do the same. The Defendant was, moreover, able to point to any further document or documents inclusion of which was said to be necessary in the interests of promoting balance and even-handedness.
What if there had been a "SmithKline Hearing"?
MR JUSTICE FORDHAM: Mr Willems QC, and Mr Feeny. I have read the papers. Thank you for your industry and assistance. I am satisfied, based on what I have read, as to the appropriateness of the HRA Declaration. In relation to that, I do not need to trouble you and I do not need either of you to outline the position. I am going to make an Order, embodying the HRA Declaration on which the parties, for their part, are agreed. I am also going to deal with the other aspects which are relevant for inclusion. In order to explain what I am doing, I will need to identify 16 background points, then make an Order which involves 5 operative paragraphs, and then give my reasons. What I am about to say will be embodied on the face of a Court Order which I will make, with the 17 background points recorded in the form of recitals, prefixed by the conventional phrase "and upon". The explanation is this. [The Judge proceeded here to read the Substantive Order, aloud, and in its entirety.]
(1) If there had been a SmithKline Hearing, so far as concerns the assessment of damages pursuant to the Judgment in Default (Substantive Order Recital (5)(a)), I would "without more" simply be recording (Operative Paragraph 1) the agreed compromise of the parties, on the "basis" of their "consent". It would have been like the scenario discussed by Lord Bingham CJ in SmithKline (see §23(4) above). I was not performing the "judicial act" of approving a settlement (Recital ). I was not determining whether the agreed quantum was "appropriate". On this issue, it did not matter "how much" material I had read, or "how carefully". Applying the what would have happened approach (see §23(1), (2), (4) and (5) above), if I had walked into the court room having read nothing, there would have been no submissions or citation of materials in relation to the quantum of damages of £1.7m (net of interim payments).
(2) If there had been a SmithKline Hearing, so far as concerns the HRA Declaration (Substantive Order Recital (5)(b)), the position is different. Focusing on the "reality" of what was happening (§23(2) above), there were documents before the Court which were being relied on by the parties, in relation to the question of breach of the HRA. There were documents which I had, and needed to have, "read" and "absorbed". The "judicial act" of my making the HRA Declaration, "plainly", needed to be and was "based on the material before" me. The HRA Declaration could only be "appropriate" if I was of the opinion that there were "grounds" for it, which were "made out". What would have been relieving me of the "need" to "ask for the grounds to be expressly outlined" to me, would have been my reference a "compendious" one to what I "had read". This was what would have "enabled" me to "conclude" that the HRA Declaration was "well-founded". Again, applying the what would have happened approach (§23(1), (2), (4) and (5) above), if I had walked into the court room having read nothing or having not read and absorbed a sufficiency of materials there would have been submissions and the citation of materials in relation to the HRA Declaration. In these circumstances, and having regard to the authorities, the consequences of a SmithKline Hearing would have included the following. The written submissions deployed at the Hearing, and documents placed before the Court and referred to at the Hearing, would attract the "default position" in favour of access (Dring §§38, 44: §26 above). Deployed at the hearing would be "from the very moment" when the hearing commenced (Law Debenture §34: §25(7) above). Deployed at the hearing (or referred to) would include the Judge's pre-reading and a "compendious reference" to it (SmithKline p.14: §23(2) above). The principled approach to access to court documents, including the protection of legitimate interests (Dring Proposition (vi): §27 above; also Eurasian Natural Resources Corp Ltd v Dechert LLP  EWHC 3389 (Ch)  1 WLR 4621 at §§57-58).
(3) It can be argued (as Mr Feeny has): that there was no hearing; that this makes a difference to the application of the powers which the Court has so far as access to court documents are concerned; that no documents were 'deployed at a hearing'; that this matters; that it makes all the difference as to the applicability of CPR 31.22(2)(1)(a) (see §20 above); and that it makes a substantial and significant difference to the application of the principles which govern access to court documents that the Court's judicial act was a determination without a hearing.
(4) But the answer to that, at the level of principle, is that the Court has the powers and should be prepared to use them to avoid a substantial and significant difference of that nature. A helpful reference point is a description given by Lord Woolf MR in 2000, in the context of a hearing and judicial pre-reading, but which is a good fit with the judicial act of a substantive determination made without a hearing. It is found cited in Dring in the Court of Appeal  EWCA Civ 1795  1 WLR 479 at §77; and in Eurasian at §55. Lord Woolf MR said this:If the [documents] had been read in open court they would have been in the public domain. If they were read by the judge, in or out of court, as part of [the judge's] responsibility for determining what order should be made, they should be regarded as being in the public domain.The exercise of the "responsibility for determining what order should be made" is a description which fits with the situation where a substantive judicial determination is made, but without a hearing.
(5) It is true that the Counterbalancing Concern (§28 above) has been expressed in the context of counterbalancing the use of the written word, rather than traditionally the spoken word, at a hearing. A SmithKline Hearing is a classic illustration of a hearing, at which the determination is "based" exclusively on the spoken word, by reason of the comprehensive pre-reading, in circumstances where no party is opposing the order which is sought. It is a judicial act (§10 above). It is "part of the public judicial function", and one of the "dimensions" of the "judicial process" to which the open justice concern about "maintenance of the quality of the judicial process" must apply (Law Debenture §34: see §25(3) above). There is, in my judgment, no reason in principle why the Counterbalancing Concern should not feature equally when the judicial process is based on the 'spoken word' to the logical conclusion, of a substantive determination known as being made "on the papers" (without a hearing). Determination without a hearing like determination with a SmithKline Hearing, in a case where the parties are agreed as to the final order which the Court should make is a situation where a Judge's comprehensive reading and the use of and reliance on the documents by the Court enable the Judge (Law Debenture §33: §25(6) above): "to proceed as if there previously had been a hearing". The Court has ample powers to address the Counterbalancing Concern and to deal with issues relating to access to court documents. The Counterbalancing Concern by which I mean the idea which animates its various articulations (see §28 above) is in my judgment, in principle, plainly relevant to the situation where the Court could make its judicial act (a) in the Judge's private room behind the courtroom or (b) in the public court room itself.
(6) If this is wrong, and if there really is a substantial and significant difference in terms of the open justice principle and access to documents between the Court making the HRA Declaration without a hearing, and with a hearing (whether a SmithKline Hearing or some fuller hearing), then the impact of that logic would in principle be as follows. The Judge should not whether acting in the procedural context of judicial review (including HRA breaches) and PD54A §16.2 (§14 above) or CPR 54.18 (§15 above), or whether acting outside that procedural context (such as in the present case) proceed to a determination on the papers without recognising the comparative restriction of the open justice principle which this entails. The parties, whether by their agreement as to mode of hearing (CPR 54.18) or their agreed final order (PD54A §16), secure a position where the purposes of the open justice principle are undermined. Unless satisfied that there will be no such curtailment, or that such a curtailment is justified, the Court should always convene a SmithKline Hearing. If that is the position, the hearing will not be needed for the Court to be able to perform its judicial act, and the avoidable costs incurred by the parties could have been spared, but the hearing will always be needed for the Court to be able to perform its judicial act, in a way which promotes the "principle of open justice which ensures that the public administration of justice will be subject to public scrutiny" (§33 above) and which secures the purposes of open justice to enable the public to understand how the justice system works, why decisions have been taken and that judges are doing their job properly. Judicial determinations without a hearing must not be judicial determinations in the shadows, and if it is a short hearing in a courtroom that is needed to bring the sunshine scrutiny of open justice then that it what must happen. Had I thought then or now that this was the position, I would unhesitatingly have had a hearing in the courtroom.
Documents (i)-(iv): The written submissions
(1) I read these written submissions and I relied on them in my judicial act of determining that it was appropriate to make the HRA Declaration. I specifically asked myself the question: what were the relevant written submissions for the purposes of my judicial act? I was aware that documents (i) and (iii) were written submissions which had been intended for the trial. Nevertheless, they were written submissions whose primary object and predominant content had been for the parties to address the claims of HRA breaches. I specifically recorded documents (i)-(iv) as having been the parties' "written submissions before the Court" (Recital ), to which "written submissions" I then made express reference as being part of the "basis" on which the Court was "satisfied" that it was "appropriate to make this Order including the [HRA] Declaration" (Recital ); Reason (3)), that being the Court's judicial act (Operative Paragraph 2). No contention has been put forward that there is some justification for excluding some parts of the written submissions (cf. Law Debenture at §§36-37: §24 above). An example of that would have been if the Defendant could identify sections of the written submissions which were addressing the quantum issue which was dealt with by consent, "without more" (§32(1) above).
(2) Although Documents (i) and (iii) were written for the trial of what when they were written was a contested issue of whether the Defendant had breached the HRA, that was the necessary and inevitable backcloth for consideration of the HRA Declaration and its appropriateness. Documents (ii) and (iv) were not filed in substitution for (i) and (iii), in circumstances where the parties had agreed a final order. Nor were they standalone documents. There was no freestanding, joint statement (cf. CPR PD54A §16.1). Document (ii) from the Claimant made express reference to Document (i). It said (on p.2): "The legal basis for the proposed declarations was explained in the Claimant's Opening Submissions, to which reference will be made, as required". The focus of Document (ii) was to discuss the "evidence in support" of each of the Agreed Five Heads. It did not address the law, or the authorities, or the route from the (evidenced) Agreed Five Heads to the conclusions of HRA breach. If I had been sent Document (ii) without Document (i) I would have asked for the latter. If I had been asked to make the HRA Declaration without reference to Document (i), I would have declined, insisting on a more comprehensive set of written legal contentions from the Claimant. Document (iv) from the Defendant was 6-pages (19 paragraphs). It did not set out a position on why the Agreed Five Heads was supported by the evidence, nor on the route from them to conclusions of HRA breach, still less on a standalone basis. Indeed, it made submissions criticising document (ii) for including points which were said to be "disputed" and "irrelevant". What I had to decide was whether the Five Agreed Heads were supported by the evidence and, in particular, whether they supported a conclusion of HRA breaches as agreed in light of the authorities and legal analysis. If Document (iii) had contained, emanating from the Defendant, a cogent legal answer to why the five matters from those being alleged now being the Agreed Five Heads could not in law support a conclusion of breach of the HRA, I could not have made the HRA Declaration without going back to the Defendant to explain how it was now accepting HRA breach. If I had been sent Document (iv) without Document (iii) I would have asked for the latter. If I had been asked to make the HRA Declaration without reference to Document (iii), I would have declined, insisting on a more comprehensive set of written legal contentions from the Defendant.
(3) The Defendant is correct when it submits that the written submissions contain references to the evidence, including disclosed documents, including quotations. But that is inevitably what a good and helpful skeleton argument does: see Law Debenture at §20 (§25(2) above). I needed reference to the evidence in order to understand what was being relied on, in particular in relation to the Agreed Five Heads, so as to be "satisfied that there are sound reasons to accept the matters which the parties have agreed" (Reason (3)), being "satisfied in light of the evidence" (Recital ). The Defendant is also correct when it points out that the Claimant's written submissions, especially those submissions prepared for the trial, included submissions relating to aspects of HRA breach which was not the subject of agreement, going beyond the Agreed Five Heads and beyond the HRA Declaration. A good example of this is the Claimant's claim that there has been no effective independent investigation putting the Defendant in breach of positive obligations under the HRA to ensure that one has been conducted. The Agreed Five Heads and the HRA Declaration does not involve a finding of such a breach. If it had been maintained when the case was settled, then there would have been "outstanding issues needing to be resolved" at a trial, as in the Wilson case (Reason (4)). It is not uncommon for a skeleton argument to cover issues which, at a hearing, the Court is told are not now being pursued. That is not a reason to decline to provide a member of the press or public with a copy of the skeleton argument for the hearing. The same is true as to a skeleton argument and an issue which has not yet been reached, when the case settles: Law Debenture at §35: see §25(7) above). Indeed, one of the points being made in Document (iv) involved making the Court aware that the HRA Declaration did not cover the entire ground of those HRA breaches which had been alleged. The fact that the Court had visibility on those matters, and the submissions concerning them, does not begin to undermine the basis for granting permission to use the written submissions.
(4) The Claimant has given a legitimate reason, pointing to an entirely legitimate interest. The open justice principle and its purposes are engaged and promoted by access, which will enable a person reading the skeletons better to understand the judicial function that I discharged, and better able if they wish to criticise my decision, process or reasoning. These things are in the public interest. There is no breach of anonymity. No cogent reason the familiar ones being national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests, the protection of trade secrets, or commercial (Dring Propositions (vi) and (viii): §27 above) has, in my judgment, been identified. There is no problem of proportionality or practicality. In a fact-specific balancing exercise, the purposes of the open justice and potential value of the information decisively outweigh any risk of harm to the maintenance of an effective judicial process or the legitimate interests of others, and the granting of access will not be impracticable or disproportionate.
(5) If I had conducted a SmithKline Hearing (§41 above) and if, at the hearing, a member of the press or public had asked for a copy of the written submissions (to which I was going to refer when reading out Recital ), I would have allowed the parties' Counsel to make observations. Had Mr Feeny made submissions along the lines of his submissions filed on the satellite issue, I would have allowed the member of the press or public to have copies of the written submissions, there and then.
Document (vii) the Admissions
Document (v) the Agreed Joint Psychiatric Statement
Document (viii): the NICHE Report
Defendant's application to vary the anonymity order
a non-party may not inspect or obtain a copy of any document on or from the Court file (other than this order duly anonymised as directed) without the permission of a Master or District Judge. Any application for such permission must be made on notice to the Claimant and the Defendant, and the Court will effect service
The Defendant submits that it should have "equal procedural rights to the claimant" and wishes to facilitate "the people named in those documents" being "given the right to be heard". The Defendant does not maintain its previous suggestion that paragraph 6 should be varied to require that notice be given not only to it but also to "anyone named in a court document which is subject to the application for disclosure". The Claimant resists this course, submitting as follows: that the anonymity order was "self-evidently intended to protect the Claimant's identity and that of her child"; that no application for anonymity was made by any member of the Defendant; and that paragraph 6 of the anonymity order "does no more than is set out in CPR 31.22(1)(b)".