Opinion: Cagey lawyers, now there’s no excuse not to share court claims!
Guidance from the England and Wales High Court that court documents should be public is a welcome move amid regular caginess from lawyers in IP trials
Whichever way you look at it, journalists are treated with an air of scepticism.
I often detect a faint smile and a slight raising of the eyebrows when I meet people for the first time and tell them what I do for a living. It’s in jest, of course, but it still attracts a reaction.
Perhaps too does saying you are a lawyer – but maybe for different reasons.
This scepticism, however, can affect our professional lives. Never more is this apparent in the life of a legal journalist than when requesting copies of court documents.
On more than one occasion I’ve asked for a copy of skeleton arguments only to be hurriedly told by the lawyers acting in the case that “you will have to ask my client” – and that’s the polite response!
In the last two weeks, I have unsuccessfully asked for particulars of claim in two cases (I won’t name them).
In the not-too-distant past, I was also asked by a judge (whom I won’t name) why I was present in court and what my interest was in being there.
With respect, this is not information that a judge or the parties acting in a case need to know.
Courts are public buildings, and unless there are strict reporting restrictions in place (which can be imposed for good reason), we – and indeed all members of the public – have as much right to be there as anyone else.
The UK prides itself on its legal system and often declares it to be among the best in the world.
But to convince people that this really is true, even the most basic starting point must surely be open justice.
We as law reporters strive for accuracy; providing a copy of the key facts in writing ahead of trial will ensure we are at least off to a good start.
But there are other complications to this secrecy.
There are often, over the course of a hearing, fleeting mentions or invitations to the judge to read relevant sections of the skeleton arguments or particulars of claim.
Without access to those documents, writing a coherent report becomes more challenging.
So, it was reassuring to see that in the latest Business and Property Courts Guide for England and Wales (published last month), there was a welcome clarification on this point.
According to the guide: “The general rule is that a hearing is to be in public. In consequence, parties and their legal representatives should be prepared to provide a copy of that party’s skeleton argument for the hearing, by email, to any law reporter, media reporter or member of the public who requests it.”
It goes on to say that unless there are solid grounds for declining to provide a copy, they should comply with the request voluntarily, without the need for intervention by the court. It adds that confidentiality concerns can be overcome by providing a suitably redacted version.
This is a hugely welcome clarification – though it is a shame it had to be said so explicitly.
Of course, there are no qualms about being given restricted (or no) access when there are serious confidentiality concerns at play.
On more than one occasion “confidentiality concerns” have been cited as a reason for not providing access to documents. It may well have been true, but I imagine it could be also used to lawyers’ advantage. No journalist wants to face a legal bill for publishing private information, and would be forgiven for feeling uncomfortable for challenging such an assertion.
But this too is easily solved and it’s good to see the court emphasised the way around it: provide a redacted version.
It’s perfectly acceptable to receive partially obscured documents so long as the reasons are good, and it doesn’t make deciphering the core arguments impossible. It’s even fine to be asked to leave court while confidential arguments are being made and return when they have finished – and I and many other reporters have done this.
It’s certainly better than be made to feel unwelcome from the outset.
To balance my earlier point, I should add that another set of lawyers I have contacted in recent weeks have been very open and willing to share claim forms.
But, sadly, caginess remains the norm.
In some ways, I understand where lawyers are coming from. They are simply acting on instruction from clients and often in very high-stakes litigation.
They will not want to be seen to be providing details to anyone who asks, or potentially be seen to be promoting their work to third parties who are, as far as the court case goes, irrelevant.
But law reporters have a vital role to play in hearing these arguments and bringing them to the public’s attention.
In IP, cases often centre around topics that will have a material impact on the wider industry – such as fair, reasonable and non-discriminatory licensing or artificial intelligence inventorship. I use those simply as examples of important cases and not where access to documents has been refused.
You may instinctively not trust us, but it’s only fair that we should be allowed to report accurately on the claims.