"The courts do adopt a flexible approach to balance the overarching primacy of the principle of open justice against the desire to reasonably protect sensitive confidential information (both for individuals and companies)."

Public access to documents in Guernsey civil proceedings

16 Aug 2016

The presumption in Guernsey is that justice must be done in public. Accordingly, unless there is some exceptional factor in any particular case which means the interests of justice can only be served by conducting proceedings in private, all civil hearings are open to the public and the press. It follows that any member of the public or the press is in principle entitled to ask to inspect copies of documents lodged at court in the course of the litigation.

Matters heard in private
The court's power to order cases, or parts of cases, to proceed in private is an aspect of its inherent jurisdiction and is not circumscribed by any particular law, rule of procedure or authority. In a number of categories of case, it is relatively common for hearings to be conducted in private and for documents to be protected from public view. Cases involving the interests of children, certain trusts cases, or matters where the wider public interest or the proper administration of justice is engaged, may fall to be dealt with in this way. 

A party seeking privacy must satisfy the judge that the particular circumstances of the case are exceptional, so as to justify a departure from the general principle of open justice. In the absence of definitive local authority, case law from Jersey and England is likely to be persuasive.  According to those authorities, potential embarrassment or inconvenience to the parties are not of themselves sufficiently exceptional features to justify a case being heard in private. 

However, the Guernsey courts have not been willing to define precisely what types of case may be heard in private and, if a litigant wishes proceedings to be conducted in private and for the court file to be sealed, the burden is upon them to satisfy the judge that an order of that nature is appropriate. The courts do adopt a flexible approach to balance the overarching primacy of the principle of open justice against the desire to reasonably protect sensitive confidential information (both for individuals and companies). It is not uncommon for a case to be heard in public but for the court file and evidence to be sealed in order to protect such information.

What documents can be obtained by third parties?
Generally speaking, whenever proceedings are in public, third parties can obtain a copy of any pleading filed in the litigation, upon request and payment of a modest fee.  Such documents will include the cause, defences, any counterclaim and any application notices.

In relation to affidavit evidence, the practice is that if copies are requested the matter will be referred to a judge. The judge will decide whether such evidence should be released and will often direct the Greffe, or court office, to contact the Advocates for each party to the case in order to seek their views, before a decision is made.

Transcripts of court proceedings
All Royal Court proceedings are recorded. However, to minimise the risk of misuse, there is no longer a general right to listen to or receive copies of recordings from the Court, irrespective of whether the request is made on behalf of a party or non-party to the proceedings.

Applications can be made to the Deputy Greffier to listen to the audio recording, but only during the course of a hearing and for the limited purpose of ensuring that an accurate note has been taken. Permission to listen to a recording may in exceptional cases be granted after an official transcript has been obtained (for example, for the purposes of an appeal), including where there is cogent evidence that the transcript may have been wrongly transcribed.
 
Transcripts can be ordered from the Court reporters who, upon payment of a prescribed fee, will then make arrangements to produce the transcripts either locally or from approved transcribers elsewhere. Where the relevant hearing was held in private, transcripts may only be supplied with the Court's express approval.