Solicitors in Westminster, London
Disclosure of documents under the court's inherent jurisdiction - Goodley v The Hut Group Ltd  EWHC 1193 (Comm)
Clifford Woodroffe, LBMW Partner, examines the court’s inherent jurisdiction to order disclosure of documents under the open justice principle, specifically where access is sought for a ‘proper journalistic purpose.
This analysis was first published on Lexis®PSL on 18 May 2021
This case involved a close examination of the court’s inherent jurisdiction to order disclosure of documents or other information that had been placed before the court under the open justice principle. The judgment specifically focused on disclosure where access is sought for a ‘proper journalistic purpose’. Mr Justice Calver held that the open justice principle is not simply limited to (i) enable public scrutiny of the way in which courts decide cases, and (ii) to enable the public to understand how the justice system works and why decisions are taken. The court held that the court has the power, as part of the open justice principle, to allow a journalist access to a document which has been referred to in open court and which they request for a proper journalistic purpose, unless affording access to the document is outweighed by the risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others.
Find the full Judgment here: Goodley v The Hut Group Ltd  EWHC 1193 (Comm)
What are the practical implications of this case?
This case is significant because it provides clarification of the court’s powers to order disclosure of documents under the open justice principle. The court specifically examined the power in relation to journalistic investigations and the balancing exercise that the court must undertake when determining whether an access request should be granted.
It clarified that the default position is that a contested application by a non-party for access documents on a court file will require an oral hearing. A proper journalistic purpose will often fall within one of Lady Hale’s two principal purposes of the open justice principle as set out in Cape Intermediate Holdings Ltd v Dring  UKSC 38. Even if it does not, the open justice principle will 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. It will then be for the respondent to demonstrate that the disclosure of the document may cause harm to the judicial process or the legitimate interest of others.
Any party involved in an application for disclosure of a document on the court file should carefully consider this case.
What was the background?
In 2020, Simon Goodley (a Guardian journalist) (the applicant) made an application to the court that The Hut Group Ltd (THG), which was the claimant in a matter in which judgment was given in 2014, provide him with a copy of a report entitled the ‘Project Hydrogen’ report pursuant to CPR 5.4C(2) and/or the court’s inherent jurisdiction. The report was referred to in the 2014 judgment and the court no longer held a copy of the report on the court file, but a copy was held by THG’s external lawyers.
The report related to an independent fraud investigation by PwC into the accounts of a company that THG was in the process of purchasing called MyProtein. The fraud and discovery of the losses at MyProtein caused THG’s initial public offering (IPO) to stop in 2011. In August 2020, THG again began to prepare for flotation on the London Stock Exchange. In response to journalistic reporting on the IPO in the context of the historic financial fraud, a THG spokesperson made several statements downplaying THG’s knowledge of the fraud. Accordingly, the applicant argued that one of the public interest points arising out of the trial, therefore, was the corporate culture in a major company as it prepared for flotation on the stock exchange, and that this public interest has been reignited by the flotation in September 2020.
The court had to decide whether, under the court’s inherent jurisdiction and in line with the open justice principle, THG could be ordered to provide to the applicant a specific document related to the original matter (ie the report). The dispute centred on whether the applicant had a proper journalistic purpose and whether this fell within the open justice principle.
What did the court decide?
Calver J referred to Lady Hale’s judgment in Dring (on behalf of the Asbestos Victims Support Groups Forum UK) v Cape Intermediate Holdings Ltd  UKSC 38, that the open justice principle applied to all courts and tribunals, and that the court has an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court. Calver J noted that the open justice principle extends to the underlying documents in a matter. Therefore, the report could be the subject of an order under the court’s inherent jurisdiction.
Calver J agreed with the approach of the court in Dring that there must be a balancing exercise when determining an access request. ‘The purpose of the open justice principle’ and ‘the potential value of the information in question in advancing that purpose’ must be considered on the one hand, and ‘any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others’ on the other hand.
Calver J held that as the report was placed before Mr Justice Blair (the judge in the 2014 trial) and was specifically referred to as a central finding in the judgment, the default position was that access should be permitted to it on the open justice principle, and where access is sought for a proper journalistic purpose the case for allowing it will be particularly strong.
However, Calver J noted that although the court has the power to allow access, the applicant has no right to be granted it. It is for the applicant seeking access to explain why they seek it and how granting them access will advance the open justice principle. On the facts Calver J held that the applicant’s broad aim in seeking disclosure of the report was to scrutinise and publicise the way in which Blair J reached his decision and to understand more fully the background as to why he decided the case in the way that he did.
The applicant’s order for disclosure of the report was granted.
- Court: Commercial Court, Queen’s Bench Division, High Court of Justice
- Judge: Mr Justice Calver
- Date of judgment: 6 May 2021
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