Appeal judges limit access to court documents in civil claims
28/07/2025
The principle of open justice is at the heart of every request for access to documents which parties to civil claims have filed at Court. For this reason, journalists may inwardly shudder on reading the Court of Appeal’s judgment which explicitly emphasises “the limits of the open justice principle”.
The case was brought by the BBC and concerns two children in family care proceedings. The children’s mother arranged for them to be looked after by a carer (the first carer) under a "private fostering arrangement". That fostering arrangement subsequently broke down; a local authority (LA) applied to the family court for an interim care order, and the children went to live with a second carer.
The BBC took an interest in how the children had been cared for by the first carer, and also in the role of the LA in those arrangements. It applied to the family court for access to various documents relating to the care proceedings, and for permission to report their contents.
In the High Court last December, the BBC advanced its application on grounds relating to the importance of reporting on, and monitoring, private fostering arrangements and the local authorities’ duties of oversight over such arrangements.
Mrs. Justice Lieven in the High Court allowed the BBC’s application, but the Court of Appeal has now unanimously overturned that decision.
The Court of Appeal followed an earlier Supreme Court decision, and identified two main purposes of the open justice principle:
- to enable public scrutiny of the way in which the courts decide cases, or “the policing of individual courts and judges”, and
- to enable public understanding of the justice system, how it works, and why decisions are taken.
The Court of Appeal also confirmed that a non-party (such as the media) seeking access to documents filed at Court must explain “how granting him access would advance the open justice principle”.
Giving the Court of Appeal’s judgment, the Lady Chief Justice, Lady Carr, said:
“it is important to understand and respect the limits of the open justice principle in this context. Court files may contain a great deal of information that is commercially sensitive or confidential or (as in this case) personal and private. The open justice principle does not extend to affording third parties access to such information for reasons unconnected with examining the work of the courts and tribunals and the judges who sit in them.
“The objective of the BBC, whilst undoubtedly part of a legitimate journalistic investigation, was neither to scrutinise the way in which courts decide cases, nor to enable the public to understand how the justice system works and decisions are made. It was not in any way designed to throw light on the workings of the family courts and their judges.”
Crucially, she added that enabling “scrutiny of decision-making by local authorities and other public bodies…is not itself a purpose which requires or justifies disclosure under the open justice principle”.
This judgment is full of useful snippets for parties seeking to prevent media access to documents, and will inevitably be relied on to oppose to press applications in future. It is therefore important to understand this judgment’s limitations.
Firstly, the Court of Appeal took pains to trumpet the importance of open justice, stating “nothing in this judgment is intended to undermine” that principle.
Secondly, it was made clear that cases are fact-specific. For example, if the way in which the LA had discharged its safeguarding functions over the private care arrangement had been examined in the care proceedings, the open justice principle may have been deemed relevant to the BBC’s application.
Thirdly, this judgment is about care proceedings in the family court, where there are extensive reporting restrictions, and the privacy rights of all the parties are firmly engaged. If this case is cited by a party opposing disclosure of documents in other types of cases, it should be distinguished on that basis.
But nevertheless, this judgment is difficult to read without concluding the task of journalists seeking access to Court-filed documents on the open justice principle, has now become that much harder, particularly in the family courts.
What is clear that the mere fact that a journalist is doing “public interest” journalism will not engage the open justice principle.
Rather, reporters will need to be prepared to explain how the documents - which they are not able to see - fall within this narrowed sense of “the open justice principle”, as explained by the LCJ.
Not an easy task, it has to be said.