Open Up! Access to Upper Tribunal Files

April 25th, 2018

The Upper Tribunal has its own rules. It is not governed by the CPR. Inevitably, this leaves some gaps on occasion. One of those which occasionally puzzles people interested in the system is that there is no equivalent to CPR rule 5.4C, which allows non-parties the right to ask to see the court file. So can a non-party get access to an Upper Tribunal file, whether or not the material has been referred to in an open hearing?Yes, said the Tax and Chancery Chamber of the Upper Tribunal in Aria Technology Ltd v HMRC & Situation Publishing [2018] UKUT 111 (TCC). Although there was no specific power given in the Rules to disclose documents to non-parties upon request, there was nothing to prohibit it either. The provisions of rule 14(8) – which allows a party to seek a direction preventing disclosure – implicitly recognises a power to disclose. Indeed, Judge Sinfield went further. Applying the open justice principle as set out in no uncertain terms in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, the Upper Tribunal had an inherent power and indeed a common law duty to consider any request for access to or disclosure of the court file, including material not referred to in open court.

Of course, the parties could object, and seek a rule 14(8) direction prohibiting such disclosure. If there were an objection, the Upper Tribunal would need to conduct a balancing exercise as between the interests of the party objecting and the interests of open justice, having regard to a strong presumption of disclosure but also to any cogent reasons setting out a risk of harm which might be caused. The presumption was, said the Upper Tribunal, stronger in the case of a journalistic request. On the facts of the particular case, there were not good reasons to prevent access to the file.

The fact that this is a TCC decision rather than an Administrative Appeals Chamber decision is by the by. The Rules are the same, and the Upper Tribunal in an information rights case will undoubtedly apply the same approach. Indeed, as my discussion of Cox [2018] UKUT 119 (AAC) (see here) indicates, the application of the open justice principle has already been assumed. Of course, the Upper Tribunal will not allow such requests to circumvent the purpose of the appeal by disclosing the disputed information itself, but if material is in the open bundle the starting point is that it is open to everyone. The Aria decision does not address the position of the First-tier Tribunal (whose rules are similarly opaque on this, and where there are arguably some points of distinction), and Cox dealt with material which had been referred to in open court and further use by one of the parties rather than the court file access by a non-party, but the mood music is clear and should serve as a reminder to parties: don’t put material in the open bundle unless you want it to be open.

Christopher Knight

 

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