NAB v Serco Ltd & Anor

Documents disclosed in civil proceedings may be inspected or used by non-parties where the open justice principle supports access, including where the document was placed before the court and referred to at a public hearing. The court must conduct a fact-specific proportionality assessment. Relevant considerations include the purpose of open justice, the material’s potential value in advancing that purpose, and risks of harm to legitimate interests, including privacy and confidentiality. The public interest is not confined to documents necessary to understand the issues decided or the reasons for judgment. Access may also illuminate why proceedings settled or how allegations were investigated. Protective undertakings and anonymity measures may adequately address privacy concerns.

NAB brought claims against Serco, the Home Office and Bedfordshire Police arising from alleged sexual assaults and her immigration detention at Yarl’s Wood. The claim against Serco settled. The remaining false-imprisonment claim against the Home Office proceeded to trial, at which a Serco internal investigation report was exhibited but was only briefly referred to and was irrelevant to the issues decided.

The Guardian applied for access to the report and permission to publish it. Serco opposed the application and sought an order restricting its use under CPR 31.22(2). The central issues were whether the report had been referred to at a public hearing, and whether open justice outweighed the privacy and reputational interests relied on by Serco and the individuals named in the report.

1. The report had been “referred to” at the public hearing because it was exhibited to a witness statement before the judge and was mentioned by the witness in oral evidence, notwithstanding that it was not read aloud or addressed in the judgment. CPR 31.22(2), rather than CPR 31.22(1)(b), therefore governed the application.

2. The authorities establish that documents exhibited to witness statements are treated, for inspection purposes, as part of those statements. The earlier approach in GIO Personal Investment Services Ltd v Liverpool and London Steamship P&I Association Ltd [1999] 1 WLR 984 no longer represented the law, having regard to the CPR and the later development of the common-law open justice principle.

3. The principles in Lilly Icos Ltd v Pfizer Ltd (2) [2002] 1 WLR 2253 remained applicable. Very good reasons are required to depart from publicity. The court must consider the document’s role in the trial, the need to protect legitimate confidentiality, and any chilling effect on proper disclosure, while recognising that private hearings are a last resort.

4. Following R (Guardian News & Media Ltd) v City of Westminster Magistrates’ Court [2013] QB 618, the default position is that access should be permitted where documents have been placed before a judge and referred to in proceedings. The exercise is fact-specific and proportionate. The public interest may extend to understanding why litigation settled or how an investigation was handled, and is not limited to material necessary to understand the judgment.

5. The Guardian had a proper journalistic purpose. The privacy rights of NAB and T were adequately protected by an undertaking preserving both identities. The pleaded allegations were already public, and the asserted reputational risk to Serco did not outweigh the open justice considerations.

Serco’s application under CPR 31.22(2) was refused. The Guardian was permitted to inspect the report and publish its contents, subject to the undertaking as to anonymity.