Derek Moss v The Upper Tribunal

Open justice does not give a non-party an automatic right to obtain every document referred to in proceedings. The applicant must explain why access is sought and how it would advance public understanding of the case. This is a low threshold for skeleton arguments or written submissions central to understanding the issues, but it remains a threshold in every case. If it is met, the court or tribunal must consider countervailing harm, practicalities and proportionality, including the burden and delay involved in retrieving material after the hearing. A prompt request for readily available submissions, with no risk of harm, may require disclosure. A judgment’s account of submissions is not necessarily a sufficient substitute for the documents.

The appellant, a non-party, sought the written submissions used in proceedings before the Upper Tribunal concerning alleged contempt arising from a Freedom of Information dispute. His stated purpose was to understand the arguments and write about information-rights and contempt proceedings. The Upper Tribunal refused the application on 8 May 2023, relying on the principles in [2019] UKSC 38. The appellant appealed, alleging that the Upper Tribunal had misunderstood the common-law principles governing access to documents and had breached Articles 6 and 10 ECHR. The Court of Appeal considered whether a non-party had an automatic entitlement to such documents or had to establish a good reason and overcome any countervailing considerations.

1. Disposition. The appeal was allowed on Ground 1. It was unnecessary to determine the Article 6 and Article 10 grounds.
2. Applicable framework. Open justice enables public scrutiny of judicial decision-making and public understanding of how cases are decided. Under [2012] EWCA Civ 420 and [2019] UKSC 38, a non-party has no absolute or automatic right to every document referred to in proceedings. The applicant must explain why access is sought and how it would advance open justice. A low threshold applies where the documents are skeleton arguments or written submissions central to understanding the case.
3. Balancing exercise. If no good reason is shown, the application fails without a balancing exercise. If the threshold is met, the court or tribunal must consider harm or prejudice, confidentiality, practicalities and proportionality. Timing is relevant: applications made after proceedings may impose disproportionate burdens, whereas material sought promptly after judgment may remain readily available. Countervailing objections will ordinarily be raised by the objecting party: see [2021] EWHC 1193 (Comm).
4. Application. The Upper Tribunal judge erred by rejecting the appellant’s stated reason without explaining why, and by treating the detailed summary of submissions in the judgment as relevant to whether disclosure should be granted. Written submissions may be necessary for effective scrutiny because a judgment may inaccurately summarise or omit an important argument. The appellant had just surmounted the low threshold. There was no risk of harm, the request was made shortly after judgment when the documents were readily available, and disclosure was not disproportionate.
5. Practice in the Upper Tribunal. The court made general observations that non-parties should, where practicable, seek documents first from the party that created them. If necessary, an application should be made to the tribunal on notice. Objectors should provide their reasons to the applicant, subject to withholding confidential or sensitive details. These observations were not necessary to the disposal of the appeal.

1. Court of Appeal (Civil Division). Appeal from the Upper Tribunal allowed on Ground 1. Consideration of Ground 2 was unnecessary.
2. Upper Tribunal (Administrative Appeals Chamber). By decision dated 8 May 2023, the application for the parties’ written submissions was refused.