Elaina Cohen v Khalid Mahmood MP

A non-party has no automatic right to obtain documents used in a hearing after it has concluded. The court or tribunal must decide whether access would advance open justice, balancing the purpose and likely value of disclosure against harm to the judicial process or legitimate interests of others, and against practicality and proportionality.

An applicant must clearly explain the purpose for which documents are sought and why they are needed. The open justice principle supports scrutiny and informed criticism of judicial decisions, but it does not require disclosure of material unnecessary to understand a limited hearing. The tribunal may also consider privacy risks and the administrative burden of reviewing material for disclosure.

This was a renewed application by Ms Ilkay Cetin, a non-party who had observed remotely an Employment Appeal Tribunal hearing under rule 3(10). She sought copies of the claim and response forms, appeal documents, skeleton arguments and bundle index.

An earlier order had permitted remote observation but refused documents. The underlying rule 3(10) hearing had dismissed Ms Cohen’s proposed appeal against the Employment Tribunal’s reconsideration and remedy decision. Ms Cetin did not attend in person to view documents during that hearing.

The issue was whether the requested documents should be supplied after the hearing in accordance with the open justice principle.

1. Application refused. There had been no material change of circumstances since the earlier order refusing disclosure. In any event, the application failed on its merits.

2. Applying Dring, post-hearing access to documents is discretionary. A non-party must explain why access is sought and how disclosure would advance open justice. The tribunal must conduct a fact-specific balance between the purpose and value of disclosure, any harm to the judicial process or legitimate interests, and the practicalities and proportionality of providing the material.

3. The purposes of open justice include public scrutiny of judicial decision-making and public understanding of the justice system. They do not create an unrestricted entitlement to court files, particularly where documents contain personal, private or confidential information unrelated to scrutiny of the court’s work.

4. The requested documents extended well beyond the two limited issues determined at the rule 3(10) hearing. They were unnecessary to understand either the hearing or its decision. Ms Cetin had been able to observe remotely and had not explained why she could not attend to view documents without retaining copies.

5. The tribunal was entitled to consider the risk of unnecessary publication of personal and private material. It could also take account of Ms Cetin’s incomplete answers concerning her past handling of documents, her claimed journalistic status, and the considerable administrative work required to review material before disclosure. Those matters supported refusal.

• Employment Appeal Tribunal: This collateral document-access application followed a rule 3(10) hearing on 20 August 2025, at which the underlying proposed appeal was dismissed. The earlier order permitting remote observation but refusing documents was not varied.