A cheery post on the HM Courts and Tribunals Service blog recently announced that developers were now working on on  Making hearing lists more accessible to court and tribunal users This is long overdue. HMCTS has had court listings on its list, as it were, ever since it began its massive £1bn+ modernisation and digitisation programme back in 2016. In fact, it seems somewhat extraordinary that they should only now, six years later, have got onto this fairly critical piece of the architecture of open justice.

What follows is an overview of issues in relation to hearing lists and other information used in observing court hearings. It’s important to note that it covers a range of courts and jurisdictions, and that Family cases may be subject to particular restrictions on access to information that don’t apply elsewhere.

Why are hearing lists important?

There is no point in conducting hearings in open court if you don’t tell anyone what cases are being heard, when and where they are being heard and, just as crucially, what they are about.

Reporters and open justice campaigners have long complained how difficult it is to find out in advance about which cases might be worth attending. It’s not just the listings but also the amount of information which is — or isn’t — provided to observers before or during the hearing, particularly given how much of a party’s case is presented in written form.

Court and tribunal buildings should normally display hearing lists in public waiting areas, and a list of what is happening in any particular court should be displayed outside the doors of that court itself. Even if the hearing is in private, as most family cases are, there should still be some indication as to what is going on there.

But to assist those who may need to travel, and to manage the process for hearings that are held remotely (as they have increasingly been done during the covid pandemic), it is essential that accurate information should also be published online.

What happens currently?

The situation with court listings at the moment is something of a mixed bag. The senior courts in London manage their listing separately from all the other courts around the country, and the Supreme Court is different again, listing everything on its own website. The hearings in the Court of Appeal and various divisions of the High Court sitting in the Royal Courts of Justice and the Rolls Building are all listed the previous day in the Daily Cause Lists, which are published on Gov.uk. This includes cases in the Court of Protection and Family Division when they sit in First Avenue House in central London.

Outside London, listings for those and other courts are to be found on a third-party website, licensed by the government, called Courtserve. This publishes lists for all the Crown Court, county court, family court, court of protection, magistrates’ court and Employment Tribunal hearings up and down the country. Lists are free to access for members of the public but, unlike on the government or court websites, you need to register to use the site.

Crown Court hearings are also listed on the day itself on another government website called Xhibit. This is updated to show the current status of hearings as the day progresses.

What do hearing lists tell you?

Not much, is the answer. Generally they identify the court, the judge who will be sitting there that day, and one or more cases to be heard. Cases tend to be identified by party names (sometimes anonymised) and/or case number, and in some courts an indication (though this may be only a code) of the type of hearing.

There are ways of getting more information about a case in advance, such as viewing some of the court documents via the online filing platform, CE-file. Details of the case from the listing will help to identify it. You can do a free search, but you need to pay a fee (usually £11) to see or download any actual document. Moreover CE-file only covers civil court claims and some tribunal cases. You cannot use it to find information about family cases (which are mostly heard in private anyway) or cases in the Court of Protection.

Otherwise, you basically need to go to the court on the day and hope to hear about the case as it proceeds. Unfortunately, that often isn’t possible. That’s because so much of what is being argued and explained in open court has already been put into writing, and there is so much pressure not to waste valuable court time, that the advocates are often told to fast-forward straight to the issues in dispute.

If documents are produced and read out in court, you should in principle be able to see them and quote from them if reporting the case. But here again there are problems. The court doesn’t necessarily have a spare copy to show reporters or other observers, and the parties’ lawyers are not always helpful about lending or providing copies. If all the documents are electronic, it may be harder to share some of them because of the format in which they are stored (eg the whole bundle may be in a single PDF). Nevertheless, you are entitled to see them. The law on this was considered by the Supreme Court in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38; [2020] AC 629; [2019] WLR(D) 462 (29 July 2019), when it reiterated that (a) the civil courts have power under the Civil Procedure Rules (CPR r 5.4C(2)) to disclose documents held by the court to a non-party, if used or disclosed at or for the trial; and (b) the more senior courts (ie High Court and above) have power under their inherent jurisdiction to order disclosure even of documents not held by the court.

The situation more complicated in Family cases, which have their own set of rules, and because many cases are heard in private. Access to private hearings is limited to accredited media journalists, and to ‘legal bloggers’ (as fairly narrowly defined for this purpose in the Family Procedure Rules). But for anyone within those categories it should be possible to ask the court at the hearing for permission to see particular documents, subject to whatever reporting restrictions might apply to publishing any of the information. In the Court of Protection, cases which might formerly have been heard in private are now generally heard in open court, subject to a “transparency order” which imposes limited restrictions on any reporting of the case. But you will still need to ask to be shown any documents, either from the lawyers (if you can get hold of them and they agree to help) or, if they can’t or won’t provide them, from the court.

Access to court documents is an important part of open justice. Like the hearing lists, it forms part of the ancillary information about a case. Both are crucial in enabling court observers to follow and understand what is happening in court. They are companion panes in the window of court transparency.

Problems with hearing lists

Hearing lists need to be accurate. They need to specify correctly where and when a case is being heard, and whether it is open or private, and whether (and if so how) it can be accessed remotely. During the early part of the pandemic, when hearings were increasingly being held remotely, there were problems not just in making the necessary technical arrangements for public observers to join but even in accepting that they were entitled to do so. This was probably not helped by a practice direction under the Civil Procedure Rules (CPR PD51Y, para 3) that appeared to treat remote access for journalists as sufficient to constitute a full open hearing, even if public court observers were not given access.

The position is more complicated when it comes to family courts and the Court of Protection, where recent developments to boost transparency have disturbed or even reversed the default of private hearings. Subject the current President’s Transparency Review, family cases continue to be heard by default in private, with access to accredited observers including journalists and legal bloggers. Court of Protection cases under the revised 2017 Rules operate a reversed presumption of openness, subject to reporting restrictions. That has not prevented many remote COP hearings being listed as “private”, only to become open when an observer (such as a blogger from the Open Justice Court of Protection Project) is given access to the hearing.

Another problem is correctly identifying the court in which the hearing is to take place. For example, Court of Protection hearings are supposed to be listed separately from family cases but both are often mixed up with other cases in the county court list. Celia Kitzinger of the Open Justice Court of Protection Project told us that “between a third and a half of all COP hearings on any given day are not in the COP list. This is hugely problematic – it takes ages to find COP hearing scattered under the headings of individual courts and judges (and often mis-listed as Family Court cases)”. With family cases the problem is that sometimes they accidentally publish the names of families when they shouldn’t.

Even though the court listing services are now much better at providing information about how to join a remote hearing, eg by emailing court staff for a link in advance, problems can still occur. Often the email provided is for the wrong court or is misspelled. Even when the correct address is provided, if emails to it are not responded to in time, an observer can still end up being excluded from the hearing. Even if provided with the correct link for the hearing, an observer may encounter technical problems or the hearing may begin at a different time, leaving them effectively excluded. If judgment is reserved till a later date, the hearing list needs to publish when that will be. But if this is not done, it may prevent someone following the case being able to find out how it ended.

Remedies for exclusion

Court listing failures can evidently impact open justice. Complaints about such failures usually only result in apologies from HMCTS, along with formulaic promises of “better staff training”. However, there may be more substantive remedies available.

Insist on a transcript

The most obvious is to ask for a full audio or video transcript of the missed hearing. Recordings are made in all senior and appellate courts, county courts and the Crown Court. However, not all tribunal hearings are recorded – a matter of some surprise given the ready availability of the necessary technology and the frequency of appeals. A complaint over the lack of recording and transcription services for employment tribunals was raised recently in a joint letter to Judge Barry Clarke, president of the employment tribunal, from 300 doctors, journalists and whistleblowers who argued that an “accurate and complete court record is a fundamental prerequisite and basis for a fair trial”. (See “Lack of transcripts ‘prejudices employment hearings’”, by Catherine Baksi, Law Society Gazette, 22 March 2022.)

Where a recording has been made, it may be possible for HMCTS to supply a copy to anyone who has been wrongly or mistakenly excluded from a hearing in open court. (If the case was heard in private, there would be restrictions on access to the transcript and judicial approval would be required.) HMCTS accept this in principle. They just don’t seem to be very good at providing the solution in practice. A request by Celia Kitzinger of the Open Justice Court of Protection Project for the transcript of a telephone hearing, after her emails and telephone calls asking for access were not answered, has itself not been responded to. Another blogger, Daniel Cloake (who tweets as @MouseInTheCourt) having asked for a transcript on this basis back in March 2021 was told by an official at HMCTS in December “For some reason the transcript is not yet ready to send, I am investigating this with the transcript clerk and hope to update you with some progress before Christmas”. However, reports Cloake, “no update was sent”.

Challenge the decision

A more extreme solution, particularly if no transcript could be obtained, would be to challenge the effectiveness of the hearing itself. Daniel Cloake draw attention to two cases where the courts have ordered cases to be reheard or declared proceedings ineffective by reason of a failure of open justice.

In R (O’Connor) v Aldershot Magistrates’ Court  [2016] EWHC 2792 (Admin); [2017] 1 WLR 2833, court staff excluded members of the public from a court building because of a perceived risk that they would cause disruption. They were supporters of one of the parties, rather than reporters, but the principle must be the same. The High Court held, at para 53, that

“the refusal of HMCTS staff and of the magistrates sitting at Aldershot Magistrates’ Court on 20 February 2015 to allow Mr Jerrard and other members of the public to attend Mr O’Connor’s trial was unlawful; and (2) that, in consequence, no valid proceedings in Mr O’Connor’s trial took place on that day.”

In Storer v British Gas [2000] EWCA Civ B 528; [2000] 1 WLR 1237, because no court room was available at the time, an application in an employment tribunal claim was heard in a separate part of the building, from which the public were excluded both physically and by a notice saying “Private. No admittance to public beyond this point.” The Court of Appeal held that the tribunal had been sitting in private when it did not have jurisdiction to do so, and the failure to sit in public rendered the decision unlawful. It was therefore quashed and had to be re-heard by another tribunal.

The failure by HMCTS to respond to a timely request for access to a remote hearing seems indistinguishable from these cases. If the decision in O’Connor’s case was a deliberate one by court staff, the one in Storer seems merely an administrative error; yet in both cases the result was the same: the courts ruled that the exclusion of the public was fatal to open justice.

It’s important to note that these issues arose in cases that should have been heard in open court. Different considerations would apply in relation to Family cases where observer access to the hearing is already dependent on some form of accreditation (as media reporter or legal blogger). In such cases, it would be a matter for the court as to whether and how to provide access to missing information.

Conclusion

Open justice depends not just on courts holding hearings in public: the public must have the necessary information to observe and make sense of the hearing. That requires publicly accessible information about when and where the case is being heard, what the case is about, what the court decided, and why. (Moreover, even hearings in private need to be listed in such a way as to enable those with the appropriate accreditation to observe them, and their judgments published in anonymised form to enable public scrutiny of the operation of justice.)

Court listings are therefore a critical part of the mechanics of transparency, along with publication of judgments and, ideally, access to court papers. It’s all very well adorning the lists with the pious rubric that “Open justice is a fundamental principle …”. But it needs to be implemented in practice. No one is suggesting there is some vast conspiracy to exclude the press and public. It just isn’t being managed very well by HMCTS. But help may be on its way: the President’s transparency review report said lists needed attention and we understand this is now something his Transparency Implementation Group (TIG) will also be looking at.

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