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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> FAI General Insurance Company Ltd. v Godfrey Merrett Robertson Ltd & Ors [1998] EWCA Civ 3538 (21 December 1998) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1998/3538.html Cite as: [1999] WLR 984, [1999] 1 WLR 984, [1998] EWCA Civ 3538

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
COMMERCIAL COURT
(MR JUSTICE TIMOTHY WALKER)

		Royal Courts of Justice Strand, London WC2
		21 December 1998

LORD JUSTICE POTTER:

INTRODUCTION

This is an appeal by FAI General Insurance Company Limited ("FAI") from a decision of Mr Justice Timothy Walker refusing applications made on behalf of FAI to inspect and/or take copies of various documents referred to in open court and taken as read in the course of a trial to which FAI were not a party. The interest of FAI to inspect and obtain such documents arises as follows. FAI are currently defendants in proceedings brought by Ocean Marine Mutual Protection & Indemnity Association and Ocean Marine Mutual Insurance Association Europe OV ("OMM") in which OMM seek recovery of sums due under contracts of reinsurance made between OMM and FAI in 1993, 1994 and 1995. FAI have purported to avoid the contracts of reinsurance for misrepresentation/non-disclosure and defend upon those grounds. The contracts of reinsurance were made via a chain of brokers in London and Australia. The same chain of placing brokers were involved in placing a number of reinsurance contracts which were the subject matter of the trial before Walker J in the present action.

The present action centred on the avoidance of reinsurance contracts by the plaintiffs ("GIO"), an Australian reinsurer, the reinsured being Liverpool & London Steamship Protection and Indemnity Association ("Liverpool & London"). The placements of those contracts were broadly contemporaneous with those in the OMM action. As already indicated, the chain of brokers was the same, two particular individuals, namely Trevor Karsten for the fifth Third Party ("GAK Re") and Jonathan Chapman of the first Fourth Party ("Chapman & Co") being heavily involved in both placements. Prior to trial there was a settlement between GIO and Liverpool & London, the latter effectively accepting the avoidance of the reinsurers' contracts due to misrepresentation/non disclosure. Liverpool & London in turn settled their third party proceedings against the first Third Party ("GMR") and the second and third Third Parties. At the trial of the present action the effective plaintiff was GMR (the head Broker based in London) pursuing claims for indemnity and/or damages against the sub-brokers Chapman & Co and Mr Chapman and GAK Re. The second and third Third parties had and have identity of interest with GMR and henceforth in this judgment will not be separately referred to.

On 2nd June 1998, short opening speeches were made by Mr Edelman QC for GMR, and Mr Tomlinson QC for GAK. Mr Edelman made clear that he had a written opening (of some 67 pages) which he placed before the judge saying that he did not wish to develop it that day but preferred the judge to read it in conjunction with a lengthy opening statement for GAK, following which he (Mr Edelman) would deal with any of the judge's queries. He then elaborated on the issues as they emerged from the opening and Mr Tomlinson, for GAK, did the same. The judge indicated he would spend the 3rd June 1998 onwards as reading days, later indicating that his reading would be completed by 8th June, when the parties re-attended court. By 8^th June, GMR and GAK had settled and GMR proceeded against Chapman & Co and Mr Chapman who did not appear.

On 2nd June, prior to the openings, FAI's solicitors had written to GMR's solicitors requesting that they make available copies of, (a) the skeleton arguments lodged by counsel, (b) the trial bundles, (c) daily transcripts as they became available, all against FAI's undertaking to pay reasonable charges. They wrote:

"You will be aware that RSC Order 24, Rule 14A confirms that the usual implied undertaking on discovery ceases to apply once a document is referred to at Trial. The notes to the Rule indicate that this applies similarly to documents referred to in the Skeleton Arguments lodged with the court. And it seems to us in principle that the same thing must apply to Bundles which have been lodged before the Judge for reading during the Trial, even if in the interests of convenience and minimising costs, the judge allots reading days when the parties need not attend trial"

Having received no response, on 5th June 1998 FAI's solicitors pressed again for the documents already requested and added a request for a copy of the reading list which the judge had requested be sent to him together with copies of the documents referred to in it; also a copy of each side's list of witnesses in the order in which they were to be called, as also requested by the judge.

GMR did not comply, and, upon 8th June 1998, Mr Ivory QC was instructed for FAI to attend the trial in order to make urgent application to the judge, FAI suspecting that a settlement of the outstanding part of the trial was in the wind. When Mr Ivory raised the matter, the judge expressed the view that it was inappropriate for FAI to intervene without notice. He indicated that the trial was not going to conclude that afternoon and invited FAI to bring their application at a later stage. FAI issued a summons that day and, upon learning the day after that GMR would not co-operate to provide any of the material requested, indicated that they would proceed with the summons.

On 10th June 1998 Walker J delivered a judgment in respect of the claims against Chapman & Co and Mr Chapman which effectively concluded the litigation. Mr Leveson QC, who now appeared for FAI, immediately applied to inspect and take copies of

(a) the Skeleton Arguments lodged by Counsel with the Judge for the purposes of the Trial together with all documents referred to therein;

(b) the Trial Bundles lodged with the court or such parts have been read by the Trial Judge or referred to during the Trial or in Counsel's Skeleton Arguments lodged with the Court;

(c) the Reading List or Lists submitted by the parties to the Trial Judge after Trial began;

(d) the List or Lists of witnesses submitted to the Judge after Trial began.

The grounds of the application were stated to be:

"That Trial of the action is taking place in open Court and the applicant and any other member of the public, is entitled to access to the said categories of documents."

As foreshadowed by those stated grounds, FAI put their case on the basis of their entitlement as "any member of the public" and asserted that they applied in that capacity so that they could follow and understand the nature of the case. However, they did not conceal the underlying purpose motivating their application. Mr Bell of Clyde and Co. their solicitors, explained that:

"Evidence regarding the course of conduct on which Mr Chapman/Chapman & Co and Mr Karsten/ GAK Re engaged in relation to the Liverpool & London Reinsurances is likely to be highly material regarding the course of conduct on which they engaged on the contemporaneous placements for the Ocean Marine/FAI Reinsurance... In the circumstances, my firm has been seeking access to documentation which has been brought into the public domain as part of the trial which is under way".

Further, Mr Leveson indicated that although FAI had some general knowledge of this litigation it lacked "sufficient specificity", as he put it, in relation to the issues and the documents relevant to them to enable one or more subpoenae duces tecum to be issued against persons who were third parties to the FAI/OMM litigation, and (more important) to be justified should such persons prove unwilling to attend, or move to set such subpoenae aside.

In the light of that information, Walker J rejected the application. In a short judgment, he stated that, while he considered that the court had inherent jurisdiction to make the order sought, in the exercise of his discretion the application would be rejected on the ground that:

".. the application is being put on the basis that these documents are being required so that [FAI] can follow and understand the nature of the case being argued. In fact it is apparent from the evidence that there is a very different motive for making this application. The documents, and in my judgment in particular the copy documents in the trial bundle, are sought by Mr Leveson's clients solely for use in other litigation in which FAI are involved .."

He concluded:

"In my judgment this application has nothing whatever to do with the public interest: it is to do with the commercial interests of FAI and references to the confessed desire to understand the nature of the case being put forward are in effect mere window-dressing."

FAI's application was supplemented during the course of the hearing before Walker J by an application made pursuant to RSC Order 38 Rule 2A(12), for inspection and copies of witness statements ordered to stand as evidence in chief. This application was allowed in a written direction made by the judge following the hearing of the main application.

Upon this appeal, FAI no longer pursue their application for copies of the entirety of the trial bundles lodged with the court, but limit the order they seek to obtaining copies of the following categories of document, which represent a refinement of their Notice of Appeal.

(i) Documents referred to in the witness statements provided to FAI under Order 38 Rule 2A;

(ii) Any written opening skeleton argument or skeleton submissions to which reference was made by the judge, together with any document referred to in such an opening, argument or submission; and

Access to any document which Walker J was either specifically requested to read, or which was included in any reading list, or which was read or referred to during trial.

OMM were represented at the hearing before Walker J. Like GMR they argued that the application should be rejected. Their principal argument was that the application of FAI was a blatant attempt by a third party to side-step the effect of the rules relating to discovery whereby the interests of one party in respect of documents which it discloses in the course of litigation are protected by the implied undertaking upon the opposing party not to use them for a collateral or ulterior purpose, subject to the provisions of Order 24 rule 14A. Alternatively, OMM submitted that, if an order was made in favour of FAI, it was only just that OMM should be given equal access to the same documents.

OMM maintained that stance before this court. They have also complained that, when Walker J made his direction that FAI be permitted to inspect and take copies of the witness statements ordered to stand as evidence in chief, he failed to make a similar direction in respect of OMM.

DOCUMENTS REFERRED TO IN THE WITNESS STATEMENTS

In so far as the application of FAI (as a non-party) for access to documents used or referred to in evidence in the course of trial is based upon the provisions of O.38 Rule 2A, it seems to me to be doomed to failure. The relevant provisions are contained in paragraphs (12) to (16) of Rule 2A, which it is not in the power of the court to vary or override (see paragraph 17). Paragraphs 12 to 16 read as follows:

(12) Subject to paragraph (13) the judge shall, if any person so requests during the course of the trial, direct the associate to certify as open to inspection any witness statement which was ordered to stand as evidence in chief under paragraph (7)(a).

A request under this paragraph may be made orally or in writing.

(13) The judge may refuse to give a direction under paragraph (12) in relation to a witness statement ... if he considers that inspection should not be available –

(a) in the interests of justice or national security,

(b) because of the nature of any expert medical evidence in the statement, or

(c) for any other sufficient reason.

(14) Where the associate is directed under paragraph (12) to certify a witness statement as open to inspection he shall -

(a) prepare a certificate which shall be attached to a copy ("the certified copy") of that witness statement; and

(b) make the certified copy available for inspection.

(15) Subject to any conditions which the Court may by special or general direction impose, any person may inspect and (subject to payment of the prescribed fee) take a copy of the certified copy of a witness statement from the time when the certificate is given until the end of 7 days after the conclusion of the trial.

(16) In this rule –

(a) any reference in paragraphs (12) to (15) to a witness statement shall, in relation to a witness statement of which only part has been ordered to stand as evidence-in-chief under paragraph (7)(a), be construed as a reference to that part;

(b) any reference to inspecting or copying the certified copy of a witness statement shall be construed as including a reference to inspecting or copying a copy of that certified copy.

There seem to me at least two good reasons why those provisions, whether considered alone or in the context of the Rule as a whole, are inapt to found FAI's application. The first reason is that, on their plain words, they impose upon the court a power in respect of witness statements only and they do not extend to cover documents referred to in those statements. That is because, as a matter of ordinary terminology, a distinction clearly exists between a statement and documents referred to in that statement. Furthermore, such distinction is drawn earlier in the rule in paragraph (4) which requires that-

"Statements served under this rule shall –

(a) ...

(b) Sufficiently identify any documents referred to therein .."

The second reason is that nothing in the history or context of the introduction of the rule leads one to suppose that the Rules Committee intended thereby to introduce a provision which would enable a third party to the litigation to obtain access to inter partes documents which had previously (unless by agreement with the parties) been unavailable to any member of the public whether or not he or she attended court to hear the oral evidence of the witness in question (see further below).

Paragraphs (12) to (16) form part of a rule, the original form of which was introduced into Order 38 in 1986 for the purpose of giving effect to changes originally recommended by the Civil Justice Review. Those changes were principally concerned with the introduction of a "cards on the table" approach to litigation and for the purpose of inducing early settlement following exchange of witness statements in respect of the oral evidence of all witnesses proposed to be called at trial. The various objectives of the rule are fully set out at paragraph 38/2A/3 of the Supreme Court Practice 1999 Vol 1 and do not require elaboration in this judgment save perhaps in this respect. One of the purposes of the rule was to encourage a practice whereby the court would, in the ordinary run of cases, direct that a witness statement served under its terms should stand as the evidence in chief of the witness when called at trial. By the Practice Direction (Civil Litigation: Case Management) [1995] 1 WLR 262 it has since been provided (by paragraph 3) that

"Unless otherwise ordered, every witness statement shall stand as the evidence in chief of the witness concerned"

though it remains the position that the trial judge retains an unfettered discretion to require a witness to give evidence orally.

The purposes of Rule 2A as I have described them focus upon increasing the efficiency of the inter partes process from a procedural point of view. The rule seeks to accelerate the disclosure of the parties' evidence as between themselves; however, it is not intended otherwise to disturb the inter partes balance of advantage in the litigation or to prejudice the rights of the litigating parties outside the confines of the rule. It thus contains a provision under paragraph (11) that

"Where a party serves a witness statement under this Rule, no other person may make use of that statement for any purpose other than the purpose of the proceedings in which it was served –

(a) unless and to the extent that the party serving it gives his consent in writing or the court gives leave; or

(b) unless and to the extent that it has been put in evidence (whether pursuant to a direction under paragraph (7)(a) or otherwise)."

Thus, on the one hand, service of a witness statement under the rule does not operate to waive the confidentiality of the statement or documents to which it refers until the statement has been put in evidence at the trial. On the other hand, once it is put in evidence, the confidentiality is lost and, in principle, the witness statement is available to the public for inspection and copying, subject only to the procedures laid down in paragraphs (12) to (16) and the discretion of the judge to exclude words or passages in a witness statement for the reasons specified in sub-paragraphs (a) to (c) of paragraph (13). The practice in the Queens Bench Division as to the examination and copying of witness statements by members of the public is set out in Practice Direction Witness Statements: Inspection [1992] 1 WLR 1157.

The appropriate form of a witness statement served under Rule 2A is set out at paragraph 38/2A/8 of the Supreme Court Practice 1999 Vol 1. That form is not specifically provided for in the Rule beyond the words set out in paragraph (4)(a) and (b), but the text appearing in the Practice seems to me worthy of approval. In particular it states:

"The statement of the witness should represent his evidence in chief and should be treated as if he were giving evidence in the witness box. It should be stated in a clear, straightforward narrative form, and should use the language of the witness ... If it mentions any document or documents, the reference to each of them should, where possible be given in the margin."

Thus the form of paragraph (4) and the practice as described indicate the intention that the witness statement should embody the oral evidence of the witness as if he or she were in the witness box, making brief reference to any of the documents in the case upon which he relies. There is no warrant for reading the provisions of the Rule 2A as entitling a member of the public to inspect the documents referred to by the witness, as opposed to the witness statement itself. Thus, I consider that, so far as Rule 2A is concerned, the judge was right, when ordering inspection of the witness statements, to refuse to extend his order to include the documents referred to therein.

I would only add under this head that it is sometimes the practice of solicitors when drafting statements for witnesses of fact whose function is principally to give an account of negotiations or other exchanges in which lengthy correspondence is involved, to schedule such correspondence, or a number of extracted documents, by way of attachment to the witness statement. While that is not the position in this case, in a case where such practice has been followed it might well be successfully argued that such documents form part of the witness statement for the purposes of the procedures set out in paragraphs (12) to (16). However, nothing in this judgment is intended to pre-empt the decision or direction of any court faced with such an argument in future.

WRITTEN OPENINGS, SKELETON ARGUMENTS AND THE DOCUMENTS REFERRED TO THEREIN

Mr Leveson has put his case under this head upon very broad grounds, recognising that, in seeking an order other than under Order 38 rule 2A, he must rely upon the inherent jurisdiction of the court to regulate its own procedures.

First, he has relied upon the well known principle of "open justice" and the jealously guarded tradition that the public are entitled to see and hear what goes on in court: see Scott –v- Scott [1913] AC 417. He submitted that it was the court's concern to avoid the erosion of that tradition, and indeed to extend it so far as appropriate in respect of pre-trial hearings traditionally conducted in Chambers, which underlay the recent decision of this court in Hodgson –v- Imperial Tobacco Limited [1998] 1WLR 1056: per Lord Woolf MR at 1069G-1071E.

Second, Mr Leveson submitted that the judge was in error to hold that, by reason of FAI's "commercial interests" and its admitted motive for seeking access to the documents, FAI should be inhibited from asserting a right to information which it claims as a member of the public.

Third, he submitted that recent developments in the form of modern case management, the requirement for the submission of skeleton arguments, and the encouragement of written submissions all operate to limit the ability of members of the public to follow what goes on in court, and he observed that the events in this case afford a particularly telling example.

Fourth, he submitted that, in any case where counsel's opening speech is made in shorthand (as it were) by reference to a skeleton argument, a fortiori where it is made in the form of a written opening read by the judge in the privacy of his room, members of the public attending a trial are effectively deprived of their opportunity to see and hear what goes on if they are refused access to a copy of such documents upon application.

Fifth, Mr Leveson submitted that, in order to render proceedings fully intelligible to ordinary members of the public, it is necessary not only to be apprised of the opening statements and skeleton arguments, but also to be permitted access to all documents referred to in them. In this connection he relied on various judicial statements that, by reason of being read or referred to in court, such documents "enter the public domain" (c.p Lord Scarman in Home Office –v- Harman [1983] AC 280 at 312 and per Sir Nicholas Browne-Wilkinson VC in Derby and Co Limited –v- Weldon, The Times, 20^th November 1983 cited in Plant –v- Plant 1998 VPLR 243. By the same token, they are, subject to contrary order by the court, released from the inter partes obligation of use only in the litigation (Order 24 rule 14A). That being so, Mr Leveson argued, there can be no sensible objection to access being granted on the ground that it is necessary to give meaningful effect to what he characterised as the public's "right to understand what is happening in court".

In considering Mr Leveson's submissions it is necessary to observe that, while he has presented his arguments largely in terms of public right, the documents in respect of which FAI seeks an order are in no sense part of any public record to which, FAI, as a third party to the litigation enjoys right of access. "Public Records" are those documents which fall within the provisions of the Public Records Act 1958. They include court records and, in particular, the records of, or held in, a department of the Supreme Court, including records of any proceedings in the Court, such as writs and decrees. However:

"a court file is not a publicly available register. It is a file maintained by the court for the proper conduct of proceedings. Access to that file is restricted. Non-parties have a right of access to the extent, but only to the extent, provided in the rules."

(per Sir Donald Nicholls V-C in Donald –v- Hastings [1992] Ch 394 at 401)

Provision is made by Order 63 rules 4 and 4A as to the circumstances in which the public may have access to the files of the Supreme Court. In this respect, Rule 4 makes a distinction between the right of search and inspection by a party to a cause or matter which is unrestricted in respect of all documents filed in the Central Office or (by virtue of Rule 11) in District Registers, (including affidavits filed in that cause or matter with a view to its commencement), and the right of search and inspection enjoyed by a member of the public, which right is restricted to the documents specified in paragraph (1)(a) and (b). Those are the copy of any writ of summons or any other originating process, any judgment or order given or made in court or a copy of any such judgment or order. Leave of the Court is required for a member of the public to have access to any other documents filed in the relevant office or registry: see Paragraph (1)(c). Thus, while the parties to an action have free access to affidavits and other documents filed in the action, a member of the public requires leave to obtain such access which, no doubt, will be readily given if the affidavit or other document has been read in open court.

It is thus important to appreciate that when, in the course of the reported decisions relied upon by Mr Leveson, documents have been described as being "in the public domain", use of that expression has meant in context no more than that any other person present in court may report without restriction and/or that the inter partes confidentiality which previously attached to the document has been lost by reference to it in court (cp Plant –v- Plant per Carnwath J at 251). In the latter respect it is to be noted that Order 24 rule 14A was introduced to put the position beyond doubt, following the decision of the House of Lords in Home Office –v- Harman. References to the "public domain" go no further than that, and certainly do not have the effect of transforming such a document into one to which the public has a right of access, as opposed to one in respect of which access and the right to copy depends upon the consent of the party entitled to the document. In that connection FAI relied on a further observation of Sir Donald Nicholls V-C in Robson –v- Hastings in which the court was concerned with the inspection and publication by a journalist without leave of the court of an Official Receiver's report lodged with the court as part of the court file. In relation to the court file, the Vice-Chancellor observed at 441H –402E:

"The scheme of the rules is that, by being filed, documents do not become available for inspection or copying save to the extent that access to specified documents or classes of documents is granted either generally under the rules or by leave of the court in a particular case.

The purpose underlying this restriction presumably is that, if and when affidavits and other documents are used in open court, their content will become generally available, but until then filing documents in court, as required by the Court Rules for the purposes of litigation, shall not of itself render generally available what otherwise would not be".

Mr Leveson sought to derive assistance from the reference to the content of documents used in open court becoming "generally available". However, I do not regard the words of the Vice-Chancellor as extending beyond the context in which they were spoken i.e., as reflecting the likelihood that leave to inspect a document lodged upon the court file will readily be granted if the document has been read out in open court. They are not in my view to be taken as extending to skeleton arguments or trial bundles which are not documents required to be filed, let alone held by the court as a public record. Such documents are simply lodged with the court so that the court can communicate them to the judge dealing with the case as a matter of administrative convenience and, after the end of the case, are returned to the custody of the parties (see generally :Order 34 rule 10, Practice Direction [1995] 1 WLR 262, and the Commercial Court and Chancery Guides: see also para 34/10/2 of the Supreme Court Practice,

Vol 1).

It is thus necessary, as Mr Leveson recognised in the course of the appeal, for FAI to make out a case for the relief which it seeks on the basis of the inherent jurisdiction of the court to govern its own procedures and, in particular, to give effect to the principle of "open justice", which is now statutorily recognised in s.67 Supreme Court Act 1981, save to the extent that it retains the privacy of business which

"under this or any other Act, under rules of court or in accordance with the practice of the court ..[is].. dealt with in Chambers."

The rationale underlying the principle that, subject to certain safeguards in cases where the court is satisfied that publicity would prejudice the interests of justice, justice should be administered in open court, is to be found in the observation of Bentham, as approved and stressed by Lord Shaw in Scott –v- Scott that:

"Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice (. it is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself, when trying, under trial".

As stated by Lord Diplock in Attorney-General –v- Leveller (1979) AC 440 at 450:

"If the way that courts behave cannot be hidden from the public ear and eye, this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice".

In Home Office –v- Harman, Lord Diplock further observed, having quoted from Lord Shaw in Scott –v- Scott:

"The reason for the rule is to discipline the judiciary – to keep the judges themselves up to the mark".

He might well have added that it also reduces risk of corruption or any semblance or suspicion of it.

The right to public justice is recognised in the European Convention on Human Rights which, by Article 6(1) provides:

"... in the determination of his civil rights and obligations (. everyone is entitled to a fair and public hearing ( by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security (or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

It should be noted that the authorities I have quoted and other leading statements on the question of public justice (see for instance Scott –v- Scott per Lord Halsbury at 467-479 and per Lord Shaw at 482, R –v- Governor of Lewes Prison ex parte Doyle [1917] 2 KB 254 per Lord Reading CJ at 271 and Hodgson –v- Imperial Tobacco per Lord Woolf MR at 1069B-1070C, 1071E and 1072A-C) deal with the matter in broad terms of "open doors", the right of the press and the public not to be excluded, and the need for public announcement of the court's decision. They do not condescend to greater particularity than that and they certainly do not seek to suggest that, in devising and applying its procedures for the expeditious dispatch of judicial business, the public should be given access to such documentary material as may be before the court by way of evidence.

Historically, the matter has been dealt with in the courts of this country in the following manner. While a trial is in progress, subject to the constraints of space, and save where the paramount interests of justice dictate to the contrary, the public and the press have enjoyed a right of access to the court in order to witness the trial process conducted in accordance with procedures laid down in the Rules of Court; there is also an obligation on the judge to give a reasoned judgment in open court. Once the trial is over, for the purpose of enabling the press and public (as well as the parties) to have access to a record of the evidence and the judgment, Order 68 rules (1) and (2) provide that in every proceeding in the High Court, an official shorthand note shall, unless the judge otherwise directs, be taken of any evidence given orally in court or of any summing up or judgment by the judge. If any party so requires, the note shall be transcribed and supplied at charges authorised by the court and it is expressly provided that nothing in the rule shall be construed as prohibiting the supply of transcripts to non-parties. There are facilities for application to be made directly to the official shorthand writers in that respect. In order to cover the lacuna that would otherwise exist in respect of a witness statement ordered to be stand as evidence in chief, the provisions of Order 38 rule 2A(12)-(16) have been introduced, the court having no power to vary or override such provisions.

However, so far as the opening (or other) speeches of counsel are concerned, while a member of the public attending court will have the benefit of hearing them and be free to report them (including references to or extracts from any documents read out), there is no provision or requirement for the taking of a shorthand note or for other form of record for the benefit of the public. No doubt this is because, for the purposes of any subsequent appeal (which again takes place in public) it is the evidence before the judge and his stated reasons which are essential to the validity of his decision.

So far as concerns documents which form part of the evidence or court bundles, there has historically been no right, and there is currently no provision, which enables a member of the public present in court to see, examine or copy a document simply on the basis that it has been referred to in court or read by the judge. If and insofar as it may be read out, it will "enter the public domain" in the sense already referred to, and a member of the press or public may quote what is read out, but the right of access to it for purposes of further use or information depends upon that person's ability to obtain a copy of the document from one of the parties or by other lawful means. There is no provision by which the court may, regardless of the wishes of the parties to the litigation, make such a document available to a member of the public. Nor, so far as such documents are concerned, do I consider that any recent development in court procedures justifies the court contemplating such an exercise under its inherent jurisdiction.

On the other hand, the arguments for such an exercise in respect of the written submissions of counsel, or of skeleton arguments which are used as a substitute for oral submissions seem to me to be a good deal stronger. Mr Edelman QC for GMR has emphasised the primary but limited purpose of the "public justice" rule, namely to submit the judges to the discipline of public scrutiny. As he neatly put it, it is designed to give the public the opportunity to "judge the judges" and not to judge the case, in the sense of enabling the public to engage in the same exercise of understanding and decision as the judge. That of course is true. However, the confidence of the public in the integrity of the judicial process as well as its ability to judge the performance of judges generally must depend on having an opportunity to understand the issues in individual cases of difficulty. As Lord Scarman observed in Home Office –v- Harman at 316D

"When public policy in the administration of justice is considered, public knowledge of the evidence and arguments of the parties is certainly as important as expedition: and, if the price of expedition is to be the silent reading by the judge before or at trial of relevant documents, it is arguable that expedition will not always be consistent with justice being seen to be done."

This is particularly so in a case of great complication where careful preliminary exposition is necessary to enable even the judge to understand the case. Until recently at least, the opportunity for public understanding has been afforded by a trial process which has assumed, and made provision for, an opening speech by counsel. Further, the introduction in the Commercial Court, followed by general encouragement, of the practice of requiring skeleton arguments to be submitted to the court prior to trial was, as the name implies, aimed at apprising the court of the bones or outline of the parties' submissions in relation to the issues, rather than operating as a substitute for those submissions. While it is a requirement of the Practice Direction (Civil Litigation: Case Management) of 1995 that the opening speech should be "succinct", the essential distinction is preserved in paragraphs 8 and 9. If, as in the instant case, an opening speech is dispensed with in favour of a written opening, (or a skeleton argument treated as such) which is not read out, or even summarised, in open court before the calling of the evidence, it seems to me impossible to avoid the conclusion that an important part of the judicial process, namely the instruction of the judge in the issues of the case, has in fact taken place in the privacy of his room and not in open court. In such a case, I have no doubt that, on application from a member of the press or public in the course of the trial, it is within the inherent jurisdiction of the court to require that there be made available to such applicant a copy of the written opening or skeleton argument submitted to the judge.

In exercising his discretion in this regard, Walker J seems to have regarded the particular interest and purpose of FAI in seeking to obtain copies of counsel's written submissions, namely to obtain a full understanding of the issues and to identify the documents going to those issues as the possible subject for subpoena in parallel litigation, as a reason to refuse access which he might otherwise have been disposed to grant to a differently motivated member of the public. Yet, quite apart from the interest of the press (who are members of the public for this purpose) most persons who attend a trial when they are not parties to it or directly interested in the outcome, do so in furtherance of some special interest, whether for purposes of education, critique or research, or by reason of membership of a pressure group, or for some other ulterior but legitimate motive. It does not seem to me that the purpose of FAI in this case was in any sense improper.

In my view, the appropriate judicial approach to an application of this kind in a complicated case is to regard any member of the public who for legitimate reasons applies for a copy of counsel's written opening or skeleton argument, when it has been accepted by the judge in lieu of an oral opening, as prima facie entitled to it. I therefore consider that the judge erred in the exercise of his discretion in this case. For reasons already stated, however, those observations do not extend to documents referred to in such written opening or skeleton.

That said, the issues canvassed upon this appeal plainly raise matters appropriate for consideration in the course of the revision of the Rules of Court currently being conducted in relation to the proposed introduction of various civil justice reforms in the wake of Lord Woolf's report Access to Justice, whether by way of some specific provision in the Rules, or as the subject of a Practice Direction. 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.

DOCUMENTS ON THE JUDGE'S READING LIST

Whether or not the documents which the judge was requested to read extended beyond those referred to in the written submissions, it will be apparent from what is said above that I do not consider that any grounds have been established for FAI to be given access to them.

PROCEDURAL POINTS

In refusing leave to appeal the judge referred to "procedural defects". Mr Edelman QC has sought, though not with great vigour, to raise the objection that, following the judge's indication that FAI should bring on their application at a later stage in the trial, they issued an ordinary summons, rather than an Originating Summons, although they were not parties to the action and did not fall within any of the categories of parties entitled to intervene (see Order 15 rule 6(2) and (3) and the notes thereto in the Supreme Court Practice Vol 1). He also submitted that FAI had failed to ensure that all parties potentially affected were before the court. It was also submitted for OMM that the application came too late, in that it was heard after judgment had been given. In the circumstances of this case, we do not consider that any of those matters should be regarded as fatal to the proceedings either below or on this appeal. The appropriate time for application to be made for access to written submissions submitted to the judge for his private perusal is during trial. However, the decision in this case was postponed at the instance of the court until after the judge had given judgment, and FAI's application was dismissed on its merits rather than on the basis of inappropriate procedure. In those circumstances, the timing and manner of the hearing of the application should not be permitted to work to the disadvantage of FAI.

Finally, OMM, having previously been granted by this court leave to attend the hearing of the appeal and address such arguments to the court as it might permit, the court has treated OMM as effectively a party to the appeal. Before the judge, OMM adopted the posture that if (contrary to its primary submission) FAI were entitled to any of the documents which they sought, OMM would wish to be regarded as making similar application and entitled to similar access. In those circumstances, I consider that, without the necessity for further procedural steps to be taken, the form of any order made in respect of the written submissions and skeleton arguments should extend to OMM as well as FAI.

CONCLUSION

I would allow the appeal to the extent of ordering that FAI and OMM be entitled to inspect and make copies of the written opening submissions or skeleton arguments to which reference was made by the judge at trial.

SIR PATRICK RUSSELL: I agree.

LADY JUSTICE BUTLER-SLOSS: I also agree.

Order: Appeal allowed to the extent that FAI and OMM be entitled to inspect and make copies of the written opening submissions or skeleton arguments of GMR to which reference was made by the judge at trial; costs order against 1st, 2nd and 3rd respondents to pay 50 per cent of the costs of the appellant here and below; liberty to OMM to apply in relation to costs. (This order does not form part of the approved judgment)