Barclay & Anor v Barclay & Ors (No 2)

The open justice principle favours access to documents and materials placed before the court, especially material relied on in the court’s reasoning. It does not create an automatic entitlement to disclosure. The court retains a discretion and must weigh the purpose of access, the availability and custody of the material, privacy interests, procedural fairness, and the risk that court processes may be used to place litigation material in the public domain. Particular caution is required before making a mandatory order requiring a willing party to provide material in its possession to a third party.

The claimants sought an injunction in proceedings arising from covert recordings. During earlier hearings, including a private hearing before Freedman J, the claimants relied on video footage showing the first defendant handling the recording device. A media organisation later applied for an order requiring the claimants to provide that footage to the media for reporting purposes.

The footage was not held by the court, and the application was made at short notice. The central issue was whether the court should exercise its inherent jurisdiction and the open justice principle to compel a third party to disclose material in its possession.

1. Application refused. The court declined to order the claimants to provide the footage to the media. The application was made on short notice and did not comply with the procedural requirements of the order of 24 February 2020. It was inappropriate to make a conclusive order on the limited argument available.
2. The open justice principle requires the court to lean in favour of facilitating media access to documents and materials placed before the court, particularly material relied on by the court in its reasoning. That principle exists to enable the public to understand the proceedings. It does not mean that every document before the court must be supplied to a third party.
3. The court had no copy of the footage and had not been shown that it remained in the court’s records or possession. Any order would therefore have required the claimants, as a third party, to provide the material. No authority had been identified establishing that the court could make such an order, and the court declined to take that step on a short-notice application.
4. Relevant considerations included the purpose for which access was sought, whether the material was necessary for reporting the hearings, the extent to which the court had relied on it, the absence of dispute about the underlying events, the privacy interests engaged by disclosure, and the fact that the claimants could provide the footage voluntarily. The analogy with the protocol governing disclosure in criminal proceedings was not apt.
5. The court should be particularly cautious in a high-profile case before making a mandatory disclosure order which might facilitate the use of court machinery to place material in the public domain as part of a litigation strategy. The court did not determine the Article 8 issue, because the application could be refused on the other grounds.

First-instance decision. The judgment records earlier interlocutory hearings before Freedman J and Mr Justice Warby concerning doorstep delivery orders and inspection of seized items, but does not describe an appeal.