The obligation to provide tribunal documents to journalists
In Guardian News & Media Ltd v Rozanov and EFG Private Bank Ltd [2022] EAT 12, the Employment Appeal Tribunal (EAT) set out some useful guidance on the correct approach to third- party documentation requests, including where a request is made by a journalist for skeleton arguments, witness statements and documents referred to in the judgment.
Open justice principle
The principle of open justice is a long-established concept that has two aims: first, to enable public scrutiny of the way in which courts decide cases; and secondly, to enable the public to understand how the justice system works and why decisions are taken.
As this case highlights, there may be journalistic reasons that are relevant to the tribunal's assessment of whether the open justice principle is engaged – and, crucially, whether the content of tribunal documents should be provided where the press requests them.
Background
Mr Rozanov brought a whistleblowing claim in the employment tribunal. He alleged that his employer, EFG, a private bank, had dismissed him for making protected disclosures about the bank's failure to comply with regulatory requirements.
Over four months after the hearing (and seven weeks after the judgment), a Guardian newspaper journalist applied to the tribunal requesting copies of the pleadings, witness statements, skeleton arguments and documents referred to in the judgment. Initially, the Guardian requested unredacted copies but later requested them in redacted form.
How did the Guardian justify its request?
The Guardian considered that the judgment raised matters of "legitimate public interest", including evidence that the bank had failed to comply with anti-money laundering legislation.
Citing "journalistic reasons" for its request, the Guardian submitted that its request was:
- to better understand the matters referred to in the judgment;
- to ensure that any reporting of this matter fairly and accurately reflects all the relevant matters in the hearing;
- for the journalistic purpose of stimulating informed debate about matters of public interest; and
- to obtain further information that may assist in further enquiries.
Tribunal's decision
The Tribunal rejected the Guardian's request, stating that:
- the common law principle of open justice was engaged - but only to a very limited extent;
- the purpose of the request did not relate to the treatment of Mr Rozanov or to how the tribunal investigated the issue, but to possible breaches by the bank of anti-money laundering regulations;
- the Guardian could have attended the hearing and made use of the information revealed as they wished but failed to attend; and
- the legal costs required in connection with retrieving, identifying and supplying clean copies of the documents would be disproportionate.
The EAT's view
The EAT disagreed with the tribunal's conclusions, and was, indeed, highly critical of the decision. In this case, the principle of open justice was engaged and the bank was ordered to provide the documents. In particular, the EAT said:
- The open justice principle has an additional purpose of bringing to light matters of public interest, as well as those matters relating to doing justice between the parties in the particular case.
- When addressing the argument that the Guardian could have attended the hearing, the EAT commented on the impracticality of the press attending every hearing, or every day of a lengthy hearing, given the media's increasingly limited resources.
- There is no implicit limitation on allowing inspection of documents during the hearing only, and that applications can be made after the hearing.
- The tribunal's conclusion that the open justice principle was not strongly engaged was "fundamentally flawed" because the tribunal failed to consider the Guardian's journalistic reasons for the request, which amounted to matters of legitimate public interest.
- Material should be made available so that the judgment can be properly understood. This may lead to the disclosure of material that is of wider general public interest than the matters in issue in the particular hearing.
Observations
This case highlights that the open justice principle can apply where a third-party request relates to wider public interests; it is not necessarily restricted to the issues in the specific case. The indication, from the EAT, is that the threshold for the open justice principle to be engaged is not, necessarily, particularly high.
Respondents, especially those involved in high-profile cases, should:
- be alive to the possibility that tribunal documents, including skeleton arguments and witness statements, could be made available for public consumption;
- be aware of the limitations of arguing that disclosure requests made after a hearing are impractical or disproportionate (such grounds of resistance may prove difficult, given the increasing digitisation of tribunal documentation brought about by the pandemic); and
- tread carefully when citing costs in responses to such applications (the EAT has indicated that the costs of complying with an application of this type should be seen as part of the costs of preparing for the hearing).