Publicity of evidence given in cases part 2
Proceedings require disclosure of documents. Standard disclosure includes documents on which a party relies, or ones which adversely affect his own case, adversely affect another party's case, or support another party's case. It is an important part of procedure that the parties have to produce relevant documents including documents which actually harm their case.
It is obvious as a consequence of this rule that various documents will be produced which a party would rather they had not had to produce. There are limits however on what can be done with such documents. These arise under CPR 31.22.
The question of what can be done with the document falls into two different categories. This depends upon whether it has been read to or by the court or referred to at a public hearing or not. The general rule is that if a document is referred to at a public hearing, that the parties can use it. However under CPR 31.22(2) the court can either restrict or prohibit the use of a disclosed document even where it has been read to or by the court or referred to at a hearing held in public.
This means that once the hearing in public takes place and the document is either read or referred to at such a hearing, the onus is on the party wanting to prevent use of the document to obtain an order to that effect. It will be recalled from last week that sometimes proceedings will be held in private to protect confidentiality or in the interests of justice. It would plainly be wrong to have a whole hearing in private if the particular concern could be dealt with merely by preventing use of a particular document after the hearing. Therefore this power ensures that the court does not have an "all or nothing" approach. It should be remembered however that the court if it thinks it is in the public interest it can order disclosure of confidential material. Therefore the court will consider whether a restriction is justified on use of a document read or referred to at a public hearing.
It is not just the parties who can make an application for that order. Any person to whom the document belongs can make such an application. So for example sometimes you will have a document which is supplied to another party in confidence. They may have an obligation to disclose that in proceedings, and it may end up being referred to in court. It may not matter to them whether that document ends up being made public, but it may matter a great deal to you.
If the document is not referred to at a public hearing then disclosed documents can only be used for the purpose of the proceedings in which they are disclosed. That is unless the party disclosing the document and the party to whom the document belongs agree that it can be used for other purposes, or if the court gives permission. Thus if you receive a document in one set of proceedings, you cannot rely on it or use it in other proceedings unless you get the requisite permission. Still less can you use it in order to go to the newspapers and publicise it.
It is important that both the party disclosing the document and the owner of the document agree to disclosure, because sometimes the party with a real interest in preventing use can be a party who was originally provided the document to another. If there is no agreement then it is a question for the court.
The court will consider all of the circumstances and the public interest. There may be clear reasons as to why a document should be used (it may be relevant to other proceedings, or it may be a document which the public ought to be able to see). At the same time there should be no general rule that every document should go into the public domain, particularly not for press purposes. There is a strong public interest in ensuring that parties comply with their disclosure obligations, particularly because they are obliged to show documents which go against their own case. It is unlikely to encourage parties to approach this fully and frankly if those documents are inevitably going to end up in the public domain even if not used in court.
These articles are considering the principles in the context of the Mills-McCartney case. It is not known whether there is any issue in that case about disclosed documents. Of course in any event that was not a public hearing and so the onus will be on an applicant to show a reason why the court should put those documents in the public domain.
Of course some documents may have been owned by or possessed by Heather Mills in any event. Next we shall consider wider issues of confidentiality which can affect such documents.