Seth Barrett Tillman had an excellent oped in yesterday’s Irish Independent on the question of open justice and, in particular, access to documents filed in court by litigants. It is taken for granted in many jurisdictions that journalists and members of the public can see written arguments, allegations and facts submitted by parties in advance of court hearings but, in Ireland, an iron curtain of secrecy protects documents filed.
Why should you care? First, the current position of the Irish courts is inconsistent with modern notions of transparency, access to information, and simple fairness.
It is also inconsistent with prevailing western good governance norms. Judges are government functionaries and filings in lawsuits are, when all is said and done, an effort to lobby them — most frequently by private parties.
The public has every right to know who or what entities are lobbying the judiciary, what factual and legal arguments they are making, and what relief they are seeking.
Second, these submissions often form the basis of hearings, oral arguments, and other trial court or appellate proceedings. But such proceedings are incomprehensible (or nearly so) without advance access to these documents.
A judge will frequently refer to these documents during such proceedings; likewise, attorneys frequently frame their answers by referencing the arguments and factual assertions made in their submissions or those of their opponent.
Although the public can attend all such hearings under the Irish Constitution’s “open courts” provision, the right to “hear” such proceedings is not meaningful without access to the parties’ briefs. This is particularly true in so-called complex litigation, involving multiple parties, multiple issues, and multiple jurisdictions.
Third, competition for legal services is stifled by the lack of public access to these documents. Attorneys who wish to practise in a specialty which is new to them lack access to a library of written filings to use as models.
Tillman is absolutely correct in arguing that the lack of public access to court documents effectively limits public access to the courts and therefore the citizen’s right to see justice being done. In addition, it must obviously make life unnecessarily difficult for journalists who must rely on what is said in court along with whatever information the parties are willing to share. In fact, it is often difficult or impossible to even obtain a copy of a written judgment resulting from court proceedings.
Anyone who has spent time in court will agree with Tillman’s statement that proceedings are incomprehensible without seeing at least some of the case documentation in advance. At a very practical level, it can even be hard to make out what is being said.
Tillman suggests that an amendment providing for greater transparency could be inserted into the Legal Services Regulation Bill. On the basis that no-one knows when that legislation will be passed, I would go one further and suggest that the Government could include it in a Civil Law (Miscellaneous Provisions) Bill before the year is out.