Judges allow appeal by information rights campaigner over right to see submissions made in case he was not party to

Someone who was not a party to a case in the Upper Tribunal can still see written submissions made in it if they have sufficient reason, the Court of Appeal has ruled.

It heard an appeal by Derek Moss against a ruling by Mrs Justice Heather Williams that he had not shown a good reason why providing him with the parties' written submissions and skeleton arguments would advance the open justice principle.

Giving the main judgment, Lord Justice Underhill said the case’s origin lay in the  2015 child sexual exploitation scandal in Rotherham.

Liam Harron, an interested party in the case, had produced a booklet containing contributions from victims, of which Rotherham Metropolitan Borough Council - also an interested party - distributed 1,500 copies before telling Mr Harron that expert advice meant there would be no further distribution.

Mr Harron embarked on a campaign to find out why and after numerous applications the dispute narrowed down to a single failure by Rotherham to provide him with one attachment to an email.

The First-tier Tribunal certified this as a contempt, but Farbey J, then president of the Upper Tribunal (Administrative Appeals Chamber) later overturned this.

Mr Moss had sought the parties' written submissions in advance of the hearing before Farbey J, arguing that if this was not granted the Information Commissioner would have an advantage over him in a similar - though unrelated - contempt case he had brought against the Royal Borough of Kingston-upon-Thames.

Farbey J refused this, noting the Information Commissioner did not intend to take part in the Kingston case, so there was no good reason for Mr Moss to be served with anything from the Information Commissioner and Kingston had provided written submissions that showed how the council intended to put its case.

The judge concluded Mr Moss “does not need documents from another case to know the issues in his case”.

She added: “It is not a good or proportionate use of UT's resources to send written submission to a non-party who does not need them.”

Mr Moss then suggested the Upper Tribunal had an inherent power and a common law duty to grant third party access to those documents. He also said the parties in the Harron case had no right to be provided with a copy of his request.

He then made a formal application for “the parties’ written submissions, including the statements of case and skeleton arguments”, which went before Farbey J’s successor as president Heather Williams J.

She rejected Mr Moss’s application noting his reason was “expressed in one sentence only, with no detail given”. She said Mr Moss did not explain why Farbey J’s judgment “was insufficient to provide him with an informed understanding of the arguments deployed by the parties" and had argued the Upper Tribunal was under a duty to provide the written submissions to him, which “at best affords no support for the proposition that he has a good reason for the documents and at worst it positively undermines it”.

Coulson LJ said Mr Moss’s grounds of appeal were that the judge “misunderstood or misconstrued a binding decision of a superior court”, a reference to the decision of the Supreme Court in Dring, and that the judge's decision breached his rights under Article 6 and Article 10 ECHR. He argued there was an error of law because the judge failed to take into account the principles set out in Dring.

Mr Moss had applied for the documents on the basis “I am a campaigner and writer with a particular interest in information and rights law and certification/contempt proceedings, and I need copies of the skeleton arguments to see what arguments were deployed in these cases, to enable me to write about them from an informed point of view…”

Coulson LJ said Heather Williams J could have accepted this reason, asked for more information or rejected it and explained why.

“On analysis, however, the judge did none of these things,” he said. “Although the judge complained that the reason was ‘expressed in one sentence only, with no detail given’, she did not seek any further information about it.

“Her conclusion was that the appellant has not shown a good reason, but she did not explain why she had reached that view.”

Coulson LJ said Heather Williams J erred in law for not setting out a justification for her rejection.

He said Mr Moss’s stated reason for wanting the documents met the test set by Lady Hale in Dring and “it seems to me that the appellant had (just) surmounted [the threshold]”.

There was no disproportionality, given the written submissions would have been readily available, “so any balancing exercise in this case would only serve to confirm that the appellant should be granted disclosure of the written submissions”.

Coulson LJ found for Mr Moss but said there was then no need to consider the ECHR ground.

Agreeing, Lord Justice Males said: “The extent to which non-parties should have access to written material deployed before a court or tribunal and whether such material should be provided by the court or tribunal or by the parties, raise important issues of principle involving considerations of open justice, finality and resources which are best considered, and are currently being considered, by the Rules Committee and the Open Justice and Transparency Board.”

Also agreeing, Lord Justice Underhill said Mr Moss had not been entitled under common law to see the documents and a non-party seeking documents that were before court or tribunal must show some good reason or legitimate interest.

“But although the reasons that the appellant gave were unhelpfully sparse they were in my opinion also just sufficient to get over what is in this kind of case a low threshold; and I agree that there were in this case no countervailing considerations sufficient to justify denial of access to these particular documents.”

Mark Smulian