ENGLAND & WALES Trends and Developments Contributed by: James Lynch, Sophie Green and Nick Connor, Maltin PR
two days of the start of a hearing, or within two days of the hearing day at which the document is relied on. Other documents are also required to be filed publicly, as follows: • other written submissions provided to a judge and relied upon in a hearing; • witness statements/affidavits, but not including appendices or annexes; • expert witness reports, including appendices or annexes; • documents that are “critical to understanding the case”; and • documents agreed between the parties. These documents are given a much wider period in which to be filed – starting on the day on which the document is used or referenced and concluding at 4pm on the 14th day after that. The category most likely to cause controversy is, clearly, the somewhat nebulous category of docu- ments that are “critical to understanding the case”, given the judicial discretion involved. Guidance issued alongside the pilot practice direction makes clear that this applies to documents where it would be “artificial to regard a document as not being public”, including where it has been read out in full or where it would be “impossible to understand” the arguments without it. It is inevitable that this wide classification of “under- standing the case” will be tested in court by journal- ists requesting documents, where one of the parties is resisting. In such circumstances, where there is espe- cially sensitive material that is central to the dispute, parties will want to consider how best to prepare and advance arguments to the judge arguing that material falling outside the formal categories of the practice direction either should or should not be made public. Alongside these requirements for public filing, “Fil- ing Modification Orders” will be put in place, which establish a mechanism for public domain documents to be redacted, the filing timetable to be shifted, or access to the documents to be entirely restricted. These are intended to be handled informally, with written requests for a Filing Modification Order to be
submitted before a hearing or via the E-Filing system. The arguments around these may well be raised at the commencement of hearings, which is also when journalists are most likely to be in attendance. Notably, the guidance states that the cases where documents will not be made available will be “rare”. Clients will want to be armed with strong arguments as to why justice is better served through documents not being available (in whole or in part), balanced against the likely arguments that may be raised by the other side or by any journalists in attendance. While documents do not need to be filed immediately, parties should expect to continue to receive requests for documents from journalists attending hearings. Importantly, the practice direction itself states that existing provisions around skeleton arguments to non- parties continue to apply, so journalists will remain entitled to these documents immediately at the start of a hearing. Furthermore, the guidance accompany- ing the practice direction notes that documents still enter the public domain when referred to in court, not when they are made publicly available on the E-Filing system. Where one party is more open to media coverage than the other and shares documents as they are read in court, declining to share a copy of public domain doc- uments with journalists immediately and telling them to wait and order it from the E-Filing system is likely to result in less favourable coverage on the day of the hearing. If journalists do not have access to a client’s documents, they will be unable to represent that cli- ent’s position in coverage. It is also unlikely, in these circumstances, that follow-up articles regarding the same hearing will be published that do represent the client’s position – the modern news cycle is incredibly fast-paced, and court reporters will not have the time to revisit coverage from days (or weeks) ago. In the longer term, should the pilot be successful, the ongoing public availability of these documents is likely to be a major boon for investigative journalists who are digging into historic matters relating to an individual or company. Where written pleadings may touch on the involvement of some individuals and might have guided journalists to further avenues of enquiry, fur-
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