Category: Open Justice

Fighting anonymity with anonymity: open justice and cyberbullying

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| Defamation, Open Justice, Privacy

Stop Cyberbulling logo, via WikipediaSay you are a 15-year old girl. What would you do if you find a fake Facebook profile which contains a photograph of you, a slightly modified version of your name and other particulars which identified you, which discusses your physical appearance and weight in derogatory terms, and which includes scandalous sexual commentary about you? First, you’d contact Facebook, to have the fake profile taken down and to identify the IP address associated with it. Facebook take safety and security very seriously, especially where minors are concerned, and once they have verified the cyberbullying, they will no doubt be quick to help you out. Once you have the IP address, you can identify the relevant ISP, and ask them to reveal the names of the users associated with it, perhaps to identify potential defendants for an action in defamation or invasion of privacy. But what if Facebook or the ISP decline, and require you to get a court order before they give you that information. At this point, you run into a problem. Since justice is administered in public, you will have to disclose your identity and the facts surrounding the cyberbullying if you are to succeed in your claim against the Facebook or the ISP.…

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Open justice and access to court documents

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| Open Justice

In yesterday’s Irish Independent, Dearbbail McDonald reported that the public will get better access to court documents under plans being considered by the Government:

Ireland is unique among countries with a common law system as it does not provide access to court documents. Members of the public, as well as the media, have no way of securing access to documents, including court statements and legal submissions, that are opened and relied on in legal proceedings. …

The lack of access to court files has been raised in submissions to amend the forthcoming Legal Services Regulation Bill.

Irish Petty Sessions Court, February 1853The image left is of the Irish Petty Sessions Court, taken from the Illustrated London News in February 1853, and it shows open justice at its best: a packed courtroom, with a full crowd following the proceedings. The Petty Sessions Court was established by the Petty Sessions (Ireland) Act, 1851; and it has long since been subsumed within the District Court.

I have referred to aspects of the Legal Services Regulation Bill, 2011 already on this blog; and I hope that this welcome and significant development will find a legislative home when the Bill becomes law. Strictly speaking, this is unnecessary, as there already exist various rights of access to such material, at common law, under the European Convention on Human Rights, and under the Constitution; but an addition to these rights is very welcome.…

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McKillen’s claims against the the Barclay Brothers are dismissed

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| Open Justice

In McKillen v Misland (Cyprus) Investments Ltd [2012] EWHC 2343 (Ch) (10 August 2012) Mr Justice David Richards dismissed the claims brought by Patrick McKillen.

Patrick McKillen is the owner of a 36.2% shareholding in Coroin Limited (the Company) which owns and manages three hotels in London – Claridge’s, The Connaught and The Berkeley. Of the original members, Mr McKillen and Derek Quinlan (with 35.4%) remain. In January 2011, a company associated with Sir David and Sir Frederick Barclay bought Misland (Cyprus) Investments Limited (Misland) which then owned 24.7% and now owns 28.36%

Mr McKillen’s proceedings concern, principally, steps taken by Sir David and Sir Frederick Barclay and by companies associated with them (the Barclay interests) during 2011 to obtain control of the Company. Mr McKillen alleges that these steps involved breaches of an agreement among the shareholders and breaches of duty by directors of the Company appointed by the Barclay interests.

Mr McKillen commenced two related sets of proceedings. In one, he sought orders under sections 994-996 of the Companies Act 2006 on the grounds that the affairs of the Company had been conducted in a manner which was unfairly prejudicial to his interests as a shareholder. In the other, he sought damages in tort for conspiracy to cause loss by unlawful means and for inducing breaches of contract.…

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Sunlight is the best disinfectant: open justice and company law proceedings

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| Open Justice

SkyToursHot on the heels of McKillen v Misland (Cyprus) Investments Limited [2012] EWHC 1158 (Ch) (26 April 2012), about which I blogged in my previous post, the ever-wonderful Stare Decisis Hibernia blog brings news of another open justice case in the Irish High Court. In In re Skytours Travel Ltd, Doyle v Bergin [2010] IEHC 531 (9 July 2010) Laffoy J refused to hear a dispute between shareholders in camera. Section 205 of the Companies Act, 1963 (also here) allows a shareholder who complains that the affairs of the company are being conducted in an oppressive manner to apply to the court for a remedy, and subsection (7) allows the court to hear such an application in camera. In particular, section 205(7) provides:

If, in the opinion of the court, the hearing of proceedings under this section would involve the disclosure of information the publication of which would be seriously prejudicial to the legitimate interests of the company, the court may order that the hearing of the proceedings or any part thereof shall be in camera.

Article 34.1 of the Constitution provides that

Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.

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In England, justice is open to all – like the Ritz Hotel

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| Open Justice

Sir James Mathew, via National Portrait Gallery websiteThus (probably) spoke a nineteenth century Irish judge, Sir James Mathew (1830-1908) (pictured left). The Ritz is now owned by David and Frederick Barclay, and they are at present locked in what the media are describing as “bitter” legal proceedings (in tabloid-speak, is there any other kind of legal dispute?) being taken against them in London by Irish businessman and property developer Paddy McKillen. McKillen and the Barclays own stakes in a high profile hotel group; and in these proceedings, McKillen alleges that the Barclays have been attempting to seize control of the group by unlawful means. He is no stranger to high-stakes litigation, having successfully thwarted the National Asset Management Agency in the Irish courts in Dellway Investments v NAMA [2011] IESC 4 (3 February 2011).

In the London proceedings, much dirty linen had already been laundered in public, and McKillen balked at the prospect of having to wash more, seeking an order of the court to keep sensitive information about his personal business financial affairs away from the prying eyes, not only of the media and the public, but also of the defendants! Unsurprisingly, the application failed (Irish Independent | Irish Times here and here | PA | RTÉ News).…

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Open justice and closed tribunals: refugee hearings and the Rule of Law

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| Freedom of Expression, Media and Communications, Open Justice, The Rule of Law

Refugee Appeals Tribunal logo, via their websiteIn a previous post, I considered the common law and constitutional aspects of the principle of open justice. In Wednesday’s Irish Times, Carol Coulter reported on a case in which a child asylum seeker is alleging perceptible bias on the part of a member of the Refugee Appeals Tribunal. At present, the applicant is seeking leave to bring judicial review proceedings against the rejection of her asylum application, and the leave hearing is expected in the coming months. In an accompanying story, Coulter discussed previous cases which have challenged the secrecy and perceived unfairness of the Tribunal. That reference to “secrecy” set me thinking about the principle of open justice in the context of closed tribunals, and this post is a first attempt at applying the principle in that context. In that respect, I very much welcome discussion of my analysis in the comments.

The starting point is section 19(4A) of the Refugee Act, 1996 (also here) as inserted by section 7 of the Immigration Act, 2003 (also here), which provides:

(a) The chairperson of the Tribunal may, at his or her discretion, decide not to publish (other than to the persons referred to in section 16(17) [of the 1996 Act, also here]) a decision of the Tribunal which in his or her opinion is not of legal importance.

…

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Seeing justice done – open justice and the limits of the common law

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| Freedom of Expression, Juvenal, Open Justice, The Rule of Law

Blind Lady Justice, mural on the wall of the Criminal Courts of Justice, DublinA little while ago, I argued that liberty, democracy and the rule of law together constitute the constitutional trinity on which many modern states are founded, and that, not only are there the traditionally understood strong liberal and democratic justifications for freedom of expression, there are also equally strong free speech justifications founded in the rule of law. In yesterday’s decision in R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 (03 April 2012), the Court of Appeal for England and Wales made this point in rhetoric of great eloquence, perspicuity and vigour (though the judgments are curiously ambivalent in their ambit and ambition).

In my earlier post, I argued that, a commitment to the rule of law – where law is equally applied in open court by an impartial judiciary – both reinforces and is reinforced by robust protection of freedom of expression. The proper protection of fundamental rights reinforces the necessity for the protection of free speech as one of those fundamental rights. The proper functioning of impartial judicial tribunals is reinforced by the protection of free speech, which ensures monitoring of and comment upon the operation of such tribunals.…

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