Litigation Trending: A journalist succeeds in accessing documents 

In Goodley v The Hut Group Ltd [2021], Mr Justice Calver allowed a journalist’s application for access to a document referred to in a previous judgment, handed down more than 6 years ago. We take a look at the lessons to learn from this judgment. 

We have also published another QuickGuide providing answers to questions we are frequently asked about access to documents and hearings and how to protect confidential information.

Background

In November 2014 a judgment was given by Mr Justice Blair in The Hut Group Limited v Nobahar-Cookson and Barclays Private Bank and Trust Limited [2014]. The case related to the purchase of a company by The Hut Group Limited (THG). During the trial, THG's auditor's report (the Report) became a key part of the evidence. The Report was directly referred to in the judgment.   

Six years later, a Guardian journalist, Mr Goodley, applied for a court order requiring THG to provide him with a copy of the Report. Mr Goodley argued that he needed to see the Report so that he could write about THG's previous accounting issues and internal controls in the context of their planned flotation. 

The Court no longer held a copy of the Report, but THG's external lawyers did. THG opposed the application arguing that the request for the document had not been made in pursuit of the principle of open justice. 

The decision

Mr Goodley's application succeeded. 

Mr Justice Calver considered the Supreme Court decision in Cape Intermediate Holdings Ltd v Dring [2019]. In that case, Lady Hale had stated that the court has an inherent jurisdiction to determine what the principle of open justice requires in terms of access to documents and information that had been placed before the court. 

Lady Hale also explained that the two principal purposes of open justice were: (i) to enable public scrutiny of the way in which courts decided cases, and (ii) to enable the public to understand how the justice system worked and why decisions were taken. However, Lady Hale noted that there may also be other purposes.  

Mr Justice Calver held that, in the context of THG's proposed flotation on the stock exchange, Mr Goodley's application was a "serious journalistic issue of public interest" and that would often fall within one of the principal purposes of the open justice principle identified by Lady Hale. However, even if it did not, Mr Justice Calver said that "the open justice principle will nonetheless typically be advanced by disclosure to a journalist in pursuit of a serious journalistic story of a document referred to in open court which may be germane to that story." 

Even though the original judgment was over 6 years old, the underlying subject matter was of contemporary interest given THG's planned flotation.

The balancing exercise

Mr Justice Calver confirmed that the onus is on the Applicant to explain why they seek access to the document and why granting such access would advance the open justice principle. The court must carry out a "fact-specific proportionality exercise" evaluating both the open justice principle, and the potential value of the document in advancing that principle, as well as the risk of harm which access to the document may cause to the legitimate interests of others. 

On the facts of this case, Mr Justice Calver concluded that a proper journalistic purpose does advance the open justice principle and that THG did not argue that disclosing the Report would risk harm to its own legitimate interests or the maintenance of the judicial process. 

Lessons to learn

The judgment serves as a reminder that sensitive material created or revealed in the course of litigation may well find its way into the hands of members of the public, including journalists. Consideration should be given to a confidentiality ring at an early stage of the proceedings, although this will not always be appropriate or possible.

From an offensive perspective, it is always worth thinking about whether the Cape principle can be used to obtain documents that may be helpful in ongoing litigation or otherwise put pressure on an opponent.

Our Quickguide on access to documents and hearings

We are frequently asked questions about access to documents and hearings and how to protect confidential information in the context of litigation. Our new Quickguide on Public Access in the English civil courts sets out the answers to the most commonly encountered issues. 

Author: Catrin Southgate, Solicitor

Read our previous Litigation Trending Update here.