Open Justice – Access to Documents
An underlying employment claim brought by Rozanov against EFG Private Bank Ltd primarily on the basis of alleged whistleblowing had been dismissed in October 2018: see 2208031/2017 (“the Decision”).
Some weeks later, in November 2018, a journalist at Guardian News & Media (David Pegg) applied for copies of the ET1 & ET3 (statements of case), skeleton arguments from the final hearing, trial witness statements, and 54 specific documents expressly referred to in the Decision (alternatively a copy of the trial bundle). The Employment Tribunal no longer held clean copies of any documents except the ET1 & ET3, and so the application was framed to require EFG to provide clean copies of such documents, upon an undertaking to pay reasonable copying costs.
The Employment Tribunal provided copies of the ET1 & ET3 but – while holding that it had the power to order EFG to provide the documents, and that it was not functus officio – refused the remainder of GNM’s application by a Decision promulgated on 3 January 2020.
GNM appealed to the EAT.
The appeal was advanced on three grounds:
(1) The Tribunal failed to properly define the scope of the open justice principle;
(2) The Tribunal’s decision that granting the documents would not advance the open justice principle was perverse;
(3) The Tribunal’s evaluation as to the proper balance between open justice and the countervailing factors tending away from disclosure was clearly wrong.
The approach of the ET in holding that the Open Justice principle was not strongly engaged was fundamentally flawed.
The ET having granted a limited Rule 50 order redacting/anonymising certain information in the trial bundle (GNM’s application to set-aside that Rule 50 order had been refused and was not appealed), any countervailing confidentiality and privacy rights in the unredacted material that had been available for inspection by journalists who attended the hearing, and which was contained in documents expressly cited in a public judgment, had fallen away.
The ET’s conclusion, resting on the cost and inconvenience of providing the documents sought outweighing the open justice principle, was “wrong. If necessary I would say plainly wrong, and go so far as to find it was perverse in the sense of it being a decision that no reasonable tribunal could have reached in the circumstances of this case on a proper direction of law”.
This is the first application of the principles in Cape Intermediate Holdings v Dring [2020] AC 629 by the EAT in the particular context of employment tribunal litigation.
A careful and detailed judgment on issues such as the scope and weight of the Open Justice principle (and what purposes of an applicant might satisfy that principle); the proper appellate test on proportionality of interference in a Convention Right or the evaluative balancing exercise; and the weight of practical objections to providing documents.
Essential for any ‘access to documents’ application in the Employment Tribunal, it will also be a valuable authority to be cited for the cogent summary of the law post-Dring in all other courts and tribunals.
