The issue involved the applicant, a well-known media organisation, which sought copies of skeleton arguments, witness statements and other documents involved in an Employment Tribunal hearing.  The Tribunal proceedings this case relates to centre upon protected disclosures made by an employee in the banking industry.   An anonymity order had been made in that hearing.  Subsequently the reporter asked for copy documents (some four months after the hearing had ended).  

The argument by the reporter was a legitimate public interest that the bank may have colluded with politically involved individuals to breach money laundering regulations.   The bank, perhaps unsurprisingly, objected to disclosure.   The Tribunal, at first instance, did outline that the principle of open justice is one that should be given heed however it only operated in this case to a limited extent.   The Tribunal was not satisfied that the purpose of the report was not sufficient to allow for the documents to be produced.  Indeed, the Tribunal also stated that such an application should have been made at the hearing itself.  Therefore, only the ET1 and ET3 were released.  

The applicant appealed the decision to the EAT.   In terms of open justice, the EAT held that the Tribunal had taken a too narrow approach.   The idea that the principle was not advanced with the reasons put forward by the reporter was a flawed one.  The Tribunal should have considered his journalistic reasons which were just as important to the idea of open justice as the overarching public interest elements.  Indeed, the idea that the journalist wished to have a better understanding of the judgment and the bank’s treatment of a dismissal as well as ensuring any reporting was fair clearly fell within ensuring open justice.  This was made clear in the Supreme Court decision of Cape Intermediate Holdings v Dring [2019].   The bank argued Article 8 of the ECHR and the need for some level of confidentiality.    The issue with this argument is that for an appellate court it has to deal with the facts that have been decided at first instance.   It would require intervention where the fact finding at first instance was perverse.   Therefore, the fact that it was based upon the practical difficulties due to being asked after the hearing to produce the documents and how that was weighed up alongside open justice meant that it was not possible for the appeal court to engage in the question of Article 8 and proportionality.   Accordingly, the appeal was allowed so the documents could be released. 

Practical Lessons

The issue being explored in this case is one that occurs relatively rarely, but it is good to have an understanding of the principles at play.  The principle of open justice is a strong one and will generally mean that justice should be seen in public.  The media, to that extent, play an important role in ensuring that the public is aware of the decisions that have been made and their impact.  This decision of the EAT enhances that by giving less weigh to practical ‘bars’ such as asking for the documents after the hearing had taken place. The Tribunal and representatives should be cognisant of this approach where there is a strong media presence or interest in a case.