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Sixty years of darkness removed by ruling

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Groundbreaking decision: Ian Kawaley, the Chief Justice

The Chief Justice’s decision is a landmark ruling because it has removed 60 years of darkness from our judicial system, which prevented the public from clearly seeing and understanding what was taking place before the courts of Bermuda.

In 1955, the Supreme Court (Records) Act was passed into law. The legislation requires the court to keep a record of all proceedings that are commenced, and it sets out in what circumstances a member of the public can obtain copies of court records.

It also sets out those circumstances when a member of the public will not be permitted to obtain copies.

If a case has been concluded and a judgment delivered that is not the subject of an appeal, the legislation allows any member of the public to apply to the Registrar of the Supreme Court and inspect the court file and, with a few exceptions, obtain copies of whatever is on file.

Giving the public access to judicial records recognises and respects the public’s right to witness, discuss and criticise how our courts administer justice.

We can all recall our European history and the atrocities that transpired when justice (if you can call it that) was carried out behind closed doors with no accountability to the public.

The “Open Justice” principle is so fundamental to our democracy that it is enshrined in our constitution, the Bermuda Constitution Order of 1968. Section 6(9) of the Constitution says that “all proceedings instituted in any court for the determination of the existence or extent of any civil right or obligation, including the announcement of the decision of the court, shall be held in public.”

Access to justice and obtaining copies of documents from the records of completed cases all makes perfect sense.

What happens, however, when the case is not completed, when it has either yet to be heard by the court or the hearing is under way? What does the Supreme Court (Records) Act say about that?

Well, for 60 years the accepted but untested orthodox view was that no member of the public could inspect the court file or obtain copies of the documents filed by the parties until the completion of a case.

Statements of claim, defences, witness statements, affidavit evidence, all of these documents were considered the property of the parties to the litigation, and none of these documents were available to the public. You had to wait until the case was over.

This limitation to giving access to the court records, arises from how generations of judges, attorneys and those people familiar with the Supreme Court (Records) Act have been reading 3(2)(a) of the Act, which says: “Nothing in the foregoing provisions of this section shall be construed so as to require or authorise the Registrar, on the application of any person not entitled by any provision of law, and not duly authorised in that behalf, to allow the inspection or examination, or to prepare and furnish copies, of any of the following documents, that is to say, any pleadings or other documents relating to any civil proceedings then pending in the Supreme Court.”

On its face, the meaning of the words seem to be pretty clear: if a case is pending (not concluded), a member of the public cannot inspect or obtain copies of the court records.

The problem with that interpretation is that it clashes with the “Open Justice” principle. With few exceptions — understandably such as family, child welfare, reorganising family trusts, national security cases — section 6 (9) of the Constitution requires that hearings must be held in public, and that not only means the actual trial but any interim hearing or application such as the Government’s application to strike out Michael MacLean’s constitutional action where he seeks, on behalf of a company and a trust, ownership rights over the City of Hamilton’s waterfront property.

As part of the claim, Mr MacLean, in a written affirmation leaked to various media outlets before the hearing, made serious allegations of corruption on the part of two government ministers and a former premier.

The public, who included the media, packed into the Chief Justice’s courtroom last Monday and Tuesday and watched the proceedings unfold. The matter was without question a matter of public importance and interest and, not surprisingly, the press wished to report on the hearing.

The strikeout hearing was conducted in the same manner as all such hearings have been conducted in Bermuda.

The judge had read the pleadings and the affidavits/affirmations in advance of the hearing and this gave the lawyers the convenience of needing to highlight only those parts of the evidence that advanced their respective arguments.

The Chief Justice and the lawyers saw and understood the whole case because they each had access to all of the evidence.

The public, including the press, did not as they heard only the cherry-picked snippets of the evidence that the lawyers highlighted in court.

The process prevented the press from giving a full account of what was actually before the Chief Justice, which was all of the evidence.

Bermuda Press quite rightly saw and felt the injustice of this process. Having a public hearing does not uphold the principle of “Open Justice” if the public cannot see or hear all of the evidence.

Bermuda Press, through its attorneys, applied under the Supreme Court (Records) Act, and the Registrar of the Supreme Court understandably applied the untested and orthodox view and said that, pursuant to the longstanding practice of the Court, copies of the evidence could not be released at this time.

The case was still pending and no final judgment had been given. The Act gave an express right of appeal to a judge, and the Chief Justice, appreciating the urgency of the matter, heard the appeal last Tuesday afternoon and considered further written arguments during the week.

Bermuda Press advanced a number of arguments as to why the orthodox view should be overturned.

What the Chief Justice agreed with, and what won the day, is that section 3(2)(a) provides a previously undiscovered key to the door that has kept Court records locked away and out of sight until the case has been completed. The key was found in the beginning words of section 3(2)(a) of the Act: ‘‘Any person not entitled by any provision of law, and not duly authorised in that behalf.’’

Bermuda Press successfully argued that if a member of the public can point to a law that gives access to the documents, then the Registrar should in a proper case — a case of public importance, for instance — release the pleadings and the evidence.

The law that gives such access is the common law principle of “Open Justice”, which is enshrined in and underpins section 6(9) of the Constitution.

The Chief Justice readily accepted that in cases where the public interest is clearly engaged, then it cannot be right to restrict the public to just those few passages of the evidence that are read out in court.

The public are entitled to obtain copies of all of the evidence that is before the court, even though only select passages were mentioned in the hearing.

The judgment now means that the Registrar has a discretion whenever she considers an application for inspection or copies of court documents which discretion must be exercised reasonably and with the “Open Justice” principle in mind.

Cases with no real public-interest element are unlikely to result in the release of evidence before the conclusion of the matter.

But where the public interest is strong, the documents are likely to be released much earlier in the proceedings. This is a monumental step forward for Bermuda.

The public will be aware that the Chief Justice’s judgment allowed the parties to the Allied action to black out or redact certain parts of the evidence that was of a private or confidential nature. Bermuda Press’s attorney was part of the process.

There were only a very few redactions requested and they pertained to references to wholly irrelevant matters that have nothing at all to do with the waterfront or the actual dispute. Bermuda Press had no objection to these limited blackouts.

The Chief Justice allowed the redactions to be made. The public will have access to 99.9 per cent of what was before the Court.

Access to justice was the primary focus of the appeal. There was one other important aspect or consequence of the case that the public need to understand, and that is the consequences that flow from members of the press or the public publishing leaked court documents as opposed to documents obtained by making a proper application under the Supreme Court (Records) Act.

The Royal Gazette, which is published by Bermuda Press, sensibly refrained from printing the leaked MacLean affirmation that originally caused such a stir. It did this on advice that if the leaked contents turned out to be untrue, particularly the allegations of corruption, the Gazette could be sued for defamation by those whose reputations have been damaged.

In addition, the press have a duty to publish court proceedings in a fair and balanced way. Publishing only Mr Maclean’s allegations without publishing the response affidavits of the ministers and the former Premier, would not be presenting a fair account.

The public have an expectation of seeing and evaluating both sides of a story. There lie the dangers and pitfalls of publishing leaked affidavits and affirmations. Publishing what is said in court, even when what is said is untrue is permissible, and the law gives the public and the press the right to publish and discuss such matters. Likewise, if affidavits and affirmations are obtained properly and lawfully under the provisions of the Supreme Court (Records) Act, the press can publish the material even if the contents subsequently are proven to have been defamatory.

The Court of Appeal decided this in 1993 in the case of Bermuda Press and Julian Hall.

As a result of the Chief Justice’s landmark ruling, Bermuda overnight joins those enlightened jurisdictions that give meaningful access to justice. This was long overdue but, make no mistake about it, positive changes in our justice system comes oftentimes from an engaged and vigilant public and free press.

Bermuda Press deserves to be commended for opening the doors of justice. The public should now, with appropriate safeguards, be able to have meaningful access to the workings of our courts.

The ruling will no doubt result in future guidelines for obtaining court documents, but undoubtedly the “Open Justice” principle will be given the respect that it demands.

• Tim Marshall is a senior litigation lawyer and consultant with the law firm of Marshall Diel & Myers Ltd. He represented Bermuda Press in its appeal to the Chief Justice.

Tim Marshall (File photograph)