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Public granted access to court documents

Legal ruling: Chief Justice Ian Kawaley (File photograph by Akil Simmons)

A groundbreaking judgment allowing the public unprecedented access to court documents in civil cases has been incorporated into legal practice in Bermuda.

The ruling by Chief Justice Ian Kawaley was handed down during the summer after The Royal Gazette applied to the Supreme Court for affidavits, which had been made by Bermuda Government ministers as well as businessman, Michael MacLean, concerning the development of Hamilton waterfront, to be made public.

The judgment has now been enshrined in a “practice direction” that members of the public will be able to rely on when applying for civil court documents from the beginning of next month.

The new practice direction states: “With effect from December 1, 2015, members of the public will be entitled in civil cases, as they have been for many years in England and Wales, BVI and Cayman, to apply without leave on payment of the requisite fee for copies of (a) originating process and (b) judgments and orders in civil and commercial matters.”

The direction then lists six exempted categories that include divorce proceedings, arbitration proceedings, directions in relation to trusts, and cases relating to the administration of the estates of deceased persons.

It adds: “In due course it is anticipated that access to court records will be dealt with more comprehensively by rules of court.”

The new practice order relating to public access to court records was published on November 12 and accompanied by a two-page question and answer document. The Q&A information provides that if the Registrar refuses to allow access to documents, the public can challenge the decision and appeal to the Supreme Court.

Furthermore, it outlines the charges applicable for asking for the information as well as when and where the information can be requested.

Venous Memari, of the Centre for Justice, welcomed the move.

“The effect of this circular brings the judgment into legal practice and will enable members of the public to apply to the court for documents,” she said.

“This is good in terms of good administration of justice and transparency.”