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Secret(ive) Courts

In the nature of things, accusations are leveled at opponents in court. These accusations vary in nature and import. The most serious are found in criminal proceedings. There, the State pursues the defendant with a view to punishing him/her, possibly with imprisonment. Few criminal proceedings do not imply a moral failure in addition to a breach of the law.

However, even civil proceedings following a road traffic accident will generate pleadings criticising the defendant. They, too, may imply a moral failure on the part of the defendant, or, just as pertinently, may be construed as doing so.

Construction may be everything; if the object of criticism thinks the criticism may lower him/her in the estimation of right-thinking members of the community he/she may sue for defamation. Absolute privilege is a defence to a defamation action and, under Section 17 (2) (i) of the Defamation Act 2009, attaches to reports published of proceedings before the Irish courts whether in the Republic or in Northern Ireland. The Section reads;

“…it shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought was…… a fair and accurate report of proceedings publicly heard before, or decision made public by, any court-….”

To avail of this provision, the proceedings must have been held in public. This means that, for instance, the content of pleadings or an affidavit not opened in court will not be covered by the provision. (The writers of such pleadings or affidavits are protected, with absolute privilege, under Section 17 (2) (g) of the Defamation Act 2009).

The reporters of those pleadings or affidavits, if they are not made public in the court proceedings (i.e. not opened in court) are protected by qualified privilege under Section 18 of the Defamation Act 2009.

What if the judge, for instance, mutters “…I’ve read the affidavit…” and moves on? Has it been opened? Is it reportable?

That is a current issue in the UK.

HERE is the legal submission, in skeleton form, of the Guardian newspaper on the entitlement of the newspaper to have access to the papers upon which the [UK criminal] Courts are making or going to make their judgments.

See HERE for a statement relevant to this question in an Irish context.

So, before you can publish “a fair and accurate report” you must access the material. There is no right of access, under the Freedom of Information Acts, to Irish court records. In the High Court the records are under the control of the President of the High Court and in the Circuit Court under the control of the President of the Circuit Court.

Currently, in the High Court, civil pleadings are no longer filed in the Court. They are simply exchanged between the litigants and, later, a booklet of pleadings is delivered to the Court to facilitate the hearing of the action.

All of this is in considerable contrast to US courts. There, the general public has access to the court records. Indeed, they are often published on the internet by the court authorities. This is essential, for instance, in relation to a class action. There, the general public must be able to understand the issues to know whether to subscribe to the proceedings as an injured claimant.

When will Ireland catch up with the UK, not to speak of the US?


One Comment

  1. In the view of Mr Justice Joseph Finnegan, former President of the High Court, all documents opened or constructively opened in court should be available to the media.