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Paralegal ‘appalled’ by Supreme Court ruling

A legal ruling giving the public unprecedented access to court documents will not apply to ongoing civil cases filed before December 1, the Supreme Court has confirmed.

The judgment by Chief Justice Ian Kawaley, which has been enshrined in a practice direction, will only affect “pending” cases filed on or after December 1, this year, or cases that are closed.

But paralegal researcher Judith Chambers, who has been trying to get access to documents from a 2009 case, said she was “appalled” that the direction would not enable her to access documents from before December 1. She told The Royal Gazette she planned to appeal against the court's decision not to provide her with documentation because the case was still deemed to be “pending”.

Ms Chambers added: “I was pleased to hear about the recent practice direction, which I felt would finally enable access to certain documents — only to be told that the ruling would not apply retroactively.

“It was my belief that the practice direction was unrestricted — other than as set out on its face and in the frequently answered questions (FAQs) section.

“The FAQs section that I have now been provided with has a new sentence added referring to pending cases filed on or after December 1. I was appalled to find this out and believe it is entirely wrong.”

The ruling by Chief Justice Kawaley came after The Royal Gazette applied for affidavits made by Bermuda Government ministers as well as businessman, Michael MacLean, concerning the development of Hamilton waterfront, to be made public.

The judgment allowed for the release of the affidavits, while the later practice direction based on the ruling was accompanied by a FAQ section that included six questions including: “Are there any restrictions on the automatic right of access to documents described above?”

The initial response in November stated: “Yes, automatic access to documents in current and pending cases is not available in respect of the following categories of cases on privacy grounds” and went on to list cases where documents would not be provided such as divorce proceedings and administration of trusts.

However, the response has now been amended to: “Yes. Automatic access to documents in current or pending cases is only available in relation to cases filed on or after December 1, 2015, but not retrospectively.”

The response then goes on to list the same exempted categories.

A spokesman for the Supreme Court said: “It would be wrong in principle to disclose court documents in cases that are pending before the court, which were filed in the belief that they would not be subject to public disclosure, in accordance with the law and practice then in force.

“That is why there is an effective start date. This restriction does not apply to cases which are closed.”

To view the original practice direction click on the PDF link under Related Media.

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Published December 09, 2015 at 8:00 am (Updated December 09, 2015 at 10:33 am)

Paralegal ‘appalled’ by Supreme Court ruling

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