Introduction

Moss v The Upper Tribunal ([2024] EWCA Civ 1414) is a landmark case adjudicated by the England and Wales Court of Appeal (Civil Division) on November 15, 2024. The appellant, Mr. Moss, challenged the Upper Tribunal’s refusal to disclose written submissions from a related case, Harron, against Rotherham Metropolitan Borough Council (RMBC). Central to this appeal was the issue of open justice and the extent to which non-parties can access internal tribunal documents. This case not only scrutinizes the boundaries of information disclosure within tribunal proceedings but also reinforces the principles of transparency and public accountability in the English legal system.

Summary of the Judgment

The Court of Appeal deliberated on Mr. Moss’s appeal against the Upper Tribunal’s decision to deny his request for access to written submissions from the Harron case. The primary contention was whether RMBC’s failure to provide an email attachment constituted a breach of obligations under the Freedom of Information Act (FOIA), potentially amounting to contempt of court. The Upper Tribunal, led by Heather Williams J, reversed the earlier decision of Farbey J, who had previously refused certification of contempt in the Harron case.

Mr. Moss sought disclosure of these submissions on the grounds that, as a campaigner and writer interested in information rights law, access is essential for informed discourse. The appellate court scrutinized the lower court's reasoning, particularly its alignment with established precedents like Dring and Guardian News and Media Ltd v City of Westminster Magistrates Court (GNM). Ultimately, the Court of Appeal upheld Mr. Moss’s appeal, emphasizing that his request met the necessary threshold for advancing open justice without encountering countervailing factors that would warrant denial.

Analysis

Precedents Cited

The judgment extensively referenced pivotal cases that shape the doctrine of open justice and the disclosure of tribunal documents to non-parties. Key among these are:

• Guardian News and Media Ltd v City of Westminster Magistrates Court (GNM) [2012]: This case established that the default position favors public access to judicial documents, particularly when the requester has a legitimate journalistic purpose. Toulson LJ emphasized a fact-specific proportionality test to balance open justice against potential harms.
• Dring [2019] UKSC 38: This Supreme Court decision reinforced the principles from GNM, highlighting that non-parties must demonstrate a good reason for access, such as advancing the open justice principle. Lady Hale articulated that requests should be assessed based on the value they add to public understanding of the legal process.
• SmithKlein Beecham Biologicals SA v Connaught Laboratories Inc [1999] and Hayden v Associated Newspapers Ltd & Anr [2022]: These cases underscored the importance of access to skeleton arguments and written submissions for public comprehension of court proceedings.

These precedents collectively inform the Court of Appeal’s stance, providing a framework that prioritizes transparency while allowing for discretion based on proportionality and potential harm.

Legal Reasoning

The Court of Appeal dissected the lower court’s refusal, identifying errors in the application of legal principles from Dring and GNM. It was observed that the judge failed to adequately engage with Mr. Moss’s stated reasons for seeking access, which align with advancing open justice—a cornerstone of the English legal system as per Lord Sumption and Lord Bingham.

Furthermore, the appellate court clarified that the requirement for a good reason is a threshold that must be met by the requester. In Mr. Moss’s case, his role as a campaigner and writer with a vested interest in information rights law provided a sufficient basis under Lady Hale’s criteria. The court also dismissed irrelevant considerations raised by the lower court, such as the procedural history of Mr. Moss’s requests and the absence of an inherent common law duty for disclosure.

Impact

This judgment significantly impacts the landscape of information disclosure in tribunal proceedings. It sets a clear precedent that non-parties can access written submissions if they demonstrate a legitimate interest that aligns with the open justice principle. This ruling encourages greater transparency in tribunal operations, potentially leading to more informed public discourse and enhanced accountability of public bodies.

Future cases will likely reference Moss v The Upper Tribunal when addressing similar disclosure requests, using it to advocate for balanced access that respects both public interest and the integrity of judicial processes. Additionally, this case may influence ongoing deliberations by bodies like the Civil Procedure Rules Committee and the Open Justice and Transparency Board regarding formal guidelines on document disclosure.

Complex Concepts Simplified

Open Justice Principle

The open justice principle asserts that court proceedings should be transparent and accessible to the public. This transparency fosters accountability and public confidence in the legal system by allowing citizens to observe and understand how judicial decisions are made.

Proportionality Test

A legal standard used to determine whether the benefits of granting a request outweigh the potential harms. In the context of disclosure to non-parties, it assesses whether releasing documents serves the public good without causing undue prejudice to the parties involved.

Skeleton Arguments

Written documents submitted by parties in litigation outlining the main points of their case. These documents are crucial for understanding the arguments and evidence each side presents, thereby facilitating informed judgments and public comprehension of legal proceedings.

Contempt of Court

An offense that involves actions that disrespect or disobey the court’s authority, such as failing to comply with court orders. In this case, the potential contempt arose from RMBC’s alleged failure to provide a specific document as ordered.

Conclusion

The Court of Appeal’s decision in Moss v The Upper Tribunal underscores a pivotal moment in the enforcement of the open justice principle within tribunal proceedings. By affirming that non-parties with legitimate interests can access written submissions, the judgment promotes greater transparency and public trust in the legal system. It balances the need for openness with the necessity of protecting the integrity of judicial processes, setting a nuanced precedent for future cases. This decision not only enriches the jurisprudence on information disclosure but also encourages legal bodies to refine their procedures to accommodate the evolving demands for transparency and accountability in public law.