Confidentiality: An Interdisciplinary Issue

Our system of Civil Justice in this country is underpinned by three rules, widely regarded as fundamental. The first is that justice should be administered in open court, under the eye of the public, and judgment given in terms which explain the reasons for his decision, enable the aggrieved party to assess the prospects of appeal and enable the public to debate the principles involved. The second is that the parties should, subject to certain well-established exceptions, disclose to each other all documents relevant to the issue the court has to decide, whether the documents are helpful to a party's case or not. The third is that the court should not in reaching its decision rely on any evidence or argument which the parties have not had the opportunity to address.

The rationale of these rules is not in any way obscure. One Law Lord said in 1913 that:

in public trial is to be found, on the whole, the best security for the pure, impartial and efficient administration of justice.1

Another quoted Jeremy Bentham:

In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has placed can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice … Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial … The security of securities is publicity.2

Another Law Lord, more recently, said:

If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice.3

One of the outspoken critics of Lord Woolf's Interim Report based his criticism on the extent which the proposed reforms undermined the principle of public justice.4