Open justice and skeleton arguments

The principle of open justice – which is at the heart of our justice system and vital to the rule of law – requires courts to conduct their business publicly unless this would result in injustice. Open justice is an important safeguard against judicial bias, unfairness and incompetence, ensuring that judges are accountable in the performance of their judicial duties. It maintains public confidence in the impartial administration of justice by ensuring that judicial hearings are subject to public scrutiny.

Dealing with cases expeditiously is part of the overriding objective of the Civil Procedure Rules. Expedition places pressure on the court’s resources and has led to the practices of counsel preparing opening notes and skeleton arguments and chronologies, and of judges pre- reading documents out of court or silently during a trial or hearing, becoming more common. The result of saving time in court is that proceedings are less intelligible to the public. The courts have recognised this tension between efficient justice and open justice and the problems arising.

The open justice principle is found in the common law, and the courts have an inherent jurisdiction to determine how the principle should be applied. Courts have exercised this power to allow access to skeleton arguments to non-parties to avoid too wide a gap between what has in theory, and what has in practice, passed into the public domain. This practice has developed over many years to the stage now where it appears the default position is that courts permit access to skeleton arguments on the open justice principle. In other words, unless the case for denial is clear, individual interests must give way to the public interest in maintaining confidence in the administration of justice through the principle of openness.

Express provision for access to skeleton arguments

The court guides have not always kept pace with this development. Neither the Chancery Guide (7 February 2022) nor the Queen's Bench Guide (7 February 2022) expressly address non- party access to skeleton arguments. The latest Commercial Court Guide (3 February 2022), however, does.

Accordingly the expectation is that parties act sensibly and skeleton arguments are provided to others, upon request, and that a request is only referred to the court where there are solid grounds for declining it. This appears to reflect the current practice of the courts. What amounts to ‘solid grounds’ is unclear, although case law suggests “very good reasons” for denying access include national security, the protection of the interests of children or vulnerable adults, the protection of privacy interests, and the protection of trade secrets and commercial confidentiality.

With respect to appeals to the Court of Appeal, Practice Direction 52C makes provision for skeleton arguments to be provided to accredited law reporters and media reporters via the usher or other court official.

For appeals to the Supreme Court, the UKSC website encourages anyone interested in obtaining a copy of a skeleton argument to contact the parties directly with their request; in this regard, it includes a note to parties that “generally speaking, the Court has no objection to them releasing their cases (skeleton arguments)”. Should parties decline a request, an application for disclosure can be made to the Court.

Comment

While the broad principle of open justice and its objective are unquestionable, there may be differences of view about its practical application in the context of accessing skeleton arguments. Parties and their legal representatives should note that the new Commercial Court Guide is clear that, absent solid grounds, skeleton arguments should be made available for inspection by others. It will be interesting to see how this explicit guidance impacts on court users.