Landmark Ruling by Chief Justice Regarding Access to Court Documents and “Open Justice”

About Jessica FaiellaJessica Faiella

Jessica is an associate in the firm’s dispute resolution practice group. She practices in the area of civil and commercial litigation and advises on a wide range of matters including property disputes, estate matters, mortgage enforcement, employment matters, debt collection and immigration. Jessica started with MJM as a Pupil in July 2013 and is a local Bermudian.

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Bermuda Press (Holdings) Ltd. (“BPHL”), the parent company for the local daily newspaper The Royal Gazette, commenced proceedings against the Registrar of the Supreme Court (the “Registrar”) following the Registrar’s refusal of BPHL’s application to obtain copies of Affidavits and Exhibits filed in a case pending in the Supreme Court. The case involved a dispute between Allied Development Partners and the Government of Bermuda with reference to the Hamilton Waterfront. BPHL sought to challenge the accepted legal view that documentation being used in ongoing legal proceedings is not open to public inspection, even if the parties to the proceedings do not oppose access to the documentation.

Section (3)(c) of the Supreme Court (Records) Act 1955 (the “Act”) states:

“…the Registrar, upon the application of any person and upon the payment of the appropriate fee…

(c) shall cause to be prepared and furnished to that person a certified copy of any of the records of the Supreme Court.

(2) Nothing in the foregoing provisions shall be construed so as to require or authorize the Registrar, on the application of any person not entitled by any provision of law, and not duly authorized in that behalf, to allow the inspection or examination, or to prepare and furnish copies, of …

(a) any pleadings or other documents relating to any civil proceedings then pending in the Supreme Court.

BPHL argued that the press has a duty to inform the public as fully and fairly as possible about cases being heard by the court which touched upon issues of public interest. Furthermore, they argued that the principle of “Open Justice,” which is fundamental to our democracy and enshrined in our constitution, forming a part of Bermuda’s common law, should be guaranteed despite the well-established conventional view that denies non-parties access to documents in pending cases. Therefore, the main argument put forward was that it was in the interests of justice for the public to be fully abreast of the content of public law court proceedings and this was supported by the common law rules and the Bermuda Constitution.

BPHL further argued that the use of the word ‘pending’ in the Act was meant to exclude access to documents in cases which were awaiting hearing, as opposed to active cases. The Chief Justice did not accept that pending meant, or potentially meant, pending trial; rather, he found that the natural and ordinary meaning was that it meant active or open in the sense of awaiting a final decision.

The Court noted that there is no automatic public right of access to court records of any type in pending proceedings. Section 4 of the Act makes provision for the Supreme Court to make rules for specifying the conditions under which any of the records of the Supreme Court may be inspected, examined or copied. However, no Rules of Court have ever been made under the Act and it was noted that doing so would provide clarity by outlining those circumstances in which access to pleadings and evidence might be granted.

The Chief Justice referred to the common law rules supporting a right of access to the documents and the concept of open justice. BPHL cited the dictum of an English Court of Appeal case where the importance of open justice was discussed:

‘In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse.’

The Chief Justice agreed that the principle of open justice was part of the common law and was also guaranteed by section 6(9) of the Bermuda Constitution. He prefaced his judgment by saying that he had in the previous months set out proposals for broadening access to court records in Bermuda. The Chief Justice noted that Bermuda’s access to court records’ practice had been referred to recently by ‘Offshore Alerts’ as ‘outdated and inconsistent’ with those of the British Virgin Islands and the Cayman Islands, jurisdictions which otherwise have very similar legal systems.

The Court noted that there was a common law power to order disclosure assuming there were no countervailing interests to be protected. The reason this has become necessary is because the courts increasingly use written materials in litigation thereby preventing an observer to fully understand the subject matter of the proceedings.

The Court held that the Registrar has discretionary power to provide a member of the public with copies of written evidence filed in Court and/ or referred to in Court taking into account the common law rules on open justice. Therefore, in appropriate cases, a member of the public can be provided with copies of pleadings and affidavits referred to in the course of a public hearing. The Chief Justice indicated that this discretionary power was especially important in relation to constitutional proceedings given the public interest. The access rights would still be subject to any valid objections from the parties in the case concerned. The Chief Justice specifically noted that the discretionary power will “rarely if ever” apply in ordinary civil or commercial cases where only private interests were in play.

In the last paragraph of the Judgment, the Chief Justice summarised the position and asked:

“why, in a nutshell do the media have a right to receive copies of documents on the Court file which have been referred to in a high-profile case in a public hearing? That question is best answered in layman’s terms by Bermuda’s leading ‘Good Governance’ commentator, John Barritt, writing in today’s Royal Gazette: ‘Cats are out of the bag and the public will want to know exactly what went down. This is their Government that is being talked about and called into question.’”

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