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How should tribunals consider requests by non-parties for written submissions or skeleton arguments? This was the issue in Moss v Upper Tribunal [2024] EWCA Civ 1414 in which the Court of Appeal allowed an appeal by the self-styled campaigner and writer, Derek Moss. Mr Moss had sought copies of the parties’ written submissions in an earlier appeal in which he had an interest.
In allowing the appeal, the Court (Underhill, Coulson and Males LJJ) confirmed that there was no ‘default position’ in favour of providing non-parties with written submissions and skeleton arguments: this was emphatically not the result of Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38, [2020] AC 629 or R v Guardian News and Media Ltd v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618.
The first step is for the person seeking access to explain why they seek it and how granting them access will advance the open justice principle (see, amongst others, Scott v Scott [1913] AC 417; Guardian News and Media; and Kennedy v Charity Commission [2014] UKSC 20, [2015] AC 455). This means that the non-party has to explain how access will allow them to follow the case and understand the reasons for the judge’s decision. This is a low threshold.
If the non-party is unable to show a good reason for granting disclosure, that is the end of the matter.
If there is a good reason, countervailing factors have to be considered: those include the risk of any harm or prejudice that might be caused by disclosing the documents to a non-party. It is relevant to consider the practicalities and proportionality of granting the request. An application made after the trial has concluded is less likely to succeed than one made during the trial because the burden on the parties of identifying and retrieving the material, and on the trial judge in deciding what disclosure should be made, might be disproportionate to the benefits to the open justice principle.
Whilst the Court declined to make any detailed observations about the tribunal rules and guidance from other jurisdictions, Coulson LJ did make the following general observations about good practice in the Upper Tribunal regarding skeleton arguments and written submissions (at [34]):
“(a) It is sensible that, in the first instance, non-parties should where practicable seek such documents directly from the party which has created them…
(b) In the event of objections or difficulties, the non-party should make an application for the documents to the UT. That should be done on notice to the parties: the reference in [Hayden v Associated Newspapers Ltd [2022] EWHC 2693 (KB)] to the possibility of an application being made without notice to the parties is specifically directed at r.5.4C(1) and the right in court cases to see statements of case. That rule has no application in the UT, where there is no such thing as statements of case and the third party has no equivalent right.
(c) If such an application is made, the party or parties who object to disclosure will then have an opportunity of setting out the reasons for their objection. Those should also be provided to the non-party, so that he or she can, if necessary, comment upon them. If the basis of the objection is the confidentiality or sensitivity of the material in question, then of course the details should not be provided to the non-party.”
Moss v Upper Tribunal [2024] EWCA Civ 1414
A monthly data protection bulletin from the barristers at 5 Essex Chambers
The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.
