the Irish for rights

Open justice and access to court documents – a (lightly updated) footnote

Historical court documents via St. Louis Circuit Court Historical Records ProjectArticle 34.1 of the Constitution provides that “Justice … shall be administered in public“. By way of footnote to my earlier post on Open justice and access to court documents comes the decision of Hogan J in Allied Irish Bank plc v Tracey (No 2) [2013] IEHC 242 (21 March 2013). The applicant had been mentioned in affidavits filed by the defendant in the main action, and took this motion to have access to those affidavits. Hogan J held in his favour, and emphasised that he was entitled to the affidavits as of right and not necessarily on foot of an application to court:

[21] In any event, I do not consider that the Court’s permission was required for this purpose. These allegations were ventilated in civil proceedings in open court and, as I have already found, the affidavits were effectively openly read into the record of the court. Given that these proceedings were in open court pursuant to the requirements of Article 34.1 of the Constitution, it follows that any cloak of confidentiality or protection from non-disclosure vanished at point. …

[22] The open administration of justice is, of course, a vital safeguard in any free and democratic society. It ensures that the judicial branch is subjected to scrutiny and examination and helps to promote confidence in the fair and even handed administration of justice. Any system of secret court hearings could pave the way for judicial arrogance, overbearing judicial conduct and abuse.

[23] In these circumstances the public are entitled to have access to documents which were accordingly opened without restriction in open court. This is simply part and parcel of the open administration of justice which the Constitution (subject to exceptions) enjoins. …

This is an extraordinarily significant decision, placing on a constitutional footing what the Court of Appeal in R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 (03 April 2012) recognised as a fundamental principle of the Common law, and expanding what is at present available pursuant to Minister for Justice, Equality and Law Reform v Information Commissioner [2001] 3 IR 43, [2002] 2 ILRM 1, [2001] IEHC 35 (14 March 2001) interpreting section 46(1)(a)(I) of the Freedom of Information Act, 1997 (also here) (section 46 was amended by section 29 of the Freedom of Information (Amendment) Act, 2003 (also here), but not in any way that affected that decision). Moreover, Hogan J’s dismissal of “secret court hearings” calls our current system of closed refugee tribunals into question.

The public’s right of access to court documents is a very important aspect of the open administration of justice, but it has not heretofore been much exercised in Ireland. It is expected that the next draft of the Legal Services Regulation Bill 2011 will provide some practical guidance on how this very important right can be exercised. For example, it should clear up whether the public can exercise this right vis-à-vis the relevant court office (in principle, in my view, the answer to that question should be yes; though, at present, there would seem to be no such practice). Moreover, whilst the judgment itself only expressly covers documents fully opened in open court, the legislation could clarify the extent to which the public can have access to documents filed for the purposes of litigation but not opened in court.

Meantime, Allied Irish Bank plc v Tracey (No 2) has provided very generous parameters for such legislative procedures, and reinforced a constitutional right that is at the heart of the rule of law in our democratic polity.

2 Responses to “Open justice and access to court documents – a (lightly updated) footnote”

  1. […] Cearta.ie, Eoin O’Dell, Open justice and access to court documents – a (lightly updated) footnote […]

  2. […] to make written submissions available to the public. This is an excellent development – the public’s right of access to court documents is a very important aspect of the open administration of justice. According to […]

Leave a Reply



Me in a hatHi there! Thanks for dropping by. I’m Eoin O’Dell, and this is my blog: Cearta.ie – the Irish for rights.

“Cearta” really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

Academic links


  • RSS Feed
  • RSS Feed
  • Subscribe via Email
  • Twitter
  • LinkedIn

Archives by month

Categories by topic

My recent tweets

Blogroll (or, really, a non-blogroll)

What I'd like for here is a simple widget that takes the list of feeds from my existing RSS reader and displays it here as a blogroll. Nothing fancy. I'd love a recommendation, if you have one.

I had built a blogroll here on my Google Reader RSS subscriptions. Google Reader produced a line of html for each RSS subscription category, each of which I pasted here. So I had a list of my subscriptions as my blogroll, organised by category, which updated whenever I edited Google Reader. Easy peasy. However, with the sad and unnecessary demise of that product, so also went this blogroll. Please take a moment to mourn Google Reader. If there's an RSS reader which provides a line of html for the list of subscriptions, or for each RSS subscription category as Google Reader did, I'd happily use that. So, as I've already begged, I'd love a recommendation, if you have one.

Meanwhile, please bear with me until I find a new RSS+Blogroll solution




Creative Commons License

This blog is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License. I am happy for you to reuse and adapt my content, provided that you attribute it to me, and do not use it commercially. Thanks. Eoin

Credit where it’s due

The image in the banner above is a detail from a photograph of the front of Trinity College Dublin night taken by Melanie May.

Others whose technical advice and help have proven invaluable in keeping this show on the road include Dermot Frost, Karlin Lillington, Daithí Mac Síthigh, and Antoin Ó Lachtnáin.

Thanks to Blacknight for hosting.