Right of Access to Court File

I was asked an intriguing question the other day. One of those which at first blush seems as if it must have a straightforward answer, but on further enquiry proves tricky. And I’m not one that can rest whilst a good question is left unanswered. So…I might as well share the fruits of my labour. Mind you, it’s eye wateringly dry (that’s an inherently contradictory metaphor).

So. You’ll want to know the question first. It is: What rights does a litigant in person (LiP) have to see her court file (in family proceedings)?

I am informed that :

Different courts seem to operate different rules: in some you can walk in and ask to see it, in others you have to make an appointment.

 A father recently was asked to make an application (£90) to see his file and was told he could not view anything on which the judge had written.  He was told he had to specify which documents he wanted to see, but his purpose in viewing the file was to see if anything had been put in without his knowledge.

Another father was told to make a Freedom of Information access request.

So let’s begin with the easy bit. It’s simply duff advice to say that a father should make a FOI request in order to access his court file. The information on a court file is exempt from the FOI under s40 Freedom of Information Act 2000 because it constitutes personal data subject to s7 Data Protection Act 1998, and it is exempt from the FOI by means of s21 of that Act, because it is information reasonably accessible by other means (which includes circumstances where payment is required).

It is testament to the density of the Family Procedure Rules that it has taken me forever to locate the rule that deals with this. Initially I thought that the questioner was right when he said that the provision in the old Family Proceedings Rules 1991 that dealt with this had not carried forward. I went up hill and down dale (or up rule and down chapter and up practice direction) and could not find it. And then the Eureka moment. It is there but it is extremely well hidden at 29.12, sitting quietly and filed under “Miscellaneous”:

29.12 Access to and inspection of documents retained in court

(1) Except as provided by this rule or by any other rule or Practice Direction, no document filed or lodged in the court office shall be open to inspection by any person without the permission of the court, and no copy of any such document shall be taken by or issued to, any person without such permission. [NB rule 22.19 does make such provision in respect of inspection of witness statements at final hearings in matrimonial proceedings]

(2) A copy of an order made in open court will be issued to any person who requests it.

(3) Subject to rules 14.24 [concerns adoption / placement proceedings] and 29.1(2) [personal details address etc] and to any direction given by the court, a party to any family proceedings, or the legal representative, children’s guardian or litigation friend for a party in any family proceedings, may have a search made for, and may inspect, and obtain a copy of, any document filed or lodged in the court office in those proceedings.

Obviously some court staff don’t know it’s there either.

This rule does not permit a party or their representative to inspect any document other than those filed or lodged in the court. In my view this would include correspondence sent to the court by one party but not sent to the other (subject to any specific order limiting the rule in relation to a specific document), but would exclude documents created by court staff or the judge. I don’t think this would prevent a party from bespeaking a copy of a document lodged with the court which a judge had written upon, but it would not extend to a right to see the judges own notes where those comprised separate documents.

So the upshot is this : any party seeking documents in their case is entitled to inspect them and to obtain a copy unless a specific order has been made by a judge saying otherwise. They should refer any unhelpful or cautious member of court staff to FPR Rule 29.12. There should be no need to issue an application or to pay an issue fee, but in my view the rules don’t  confer the right to free copying facilities. Any applicant should expect to have to pay HMCTS’ eye wateringly expensive photocopying charges (not an inherently contradictory metaphor but quite possibly a literal description of the physical reaction to the suggestion you should pay £5 for the first page), or should go armed with tech in order to make his own copies. I would suggest Scanner Pro, which is a very cheap app for iphone which is really handy for scanning in multiple page pdfs using your phone camera as a scanner, but I’m slightly anxious that a pedant (or a court security guard) might say this was a contempt of court. There is an argument for saying this amounts to the taking of photographs in a court building which is contrary to s41 Criminal Justice Act 1925. I did ask twitter, but it didn’t couldn’t agree. So, scan docs at your own peril. Or cough up for the copy charges. Hopefully they will be less than a £90 issue fee!

26 thoughts on “Right of Access to Court File

  1. Andrew Watson

    It is also exempt under FOIA as certainly the last time I checked HMCS were not included in the schedules to the Act.

    I am curious about one thing. If the material is the litigants own personal data then they should be able to access it under s7 DPA. Teasing out their data from that of others might be tricky but s7 provides a right to all information about the person held by the organisation with a maximum £10 charge.

    Of course there are limitations (although fewer for public authorities) where the information is held in unstructured manual files which could well apply to most court files which always seemed to be in an enormous mess when I was in practice.

    • Hi Andrew,

      In a bit of a rush, but:

      Haven’t checked the schedules or whether there are any other exemptions but they seem to be FOI’able for some purposes: http://www.whatdotheyknow.com/body/hmcts. Suspect the position is in a nutshell that they won’t disclose personal data but will disclose stats and management docs etc.

      Yes they could access some docs via a DPA subject access request and there is a cap but that doesn’t entitle them to the data regarding others. I’m no DPA expert but I suspect this would result in documents redacted to the point of uselessness and arguments over whether the other side’s witness statements are even disclosable under that provision.

      Again, I’m no expert but my understanding of the DPA was that pretty much any filing system is a filing system sufficient for the DPA. The ICOs FAQs about relevant filing systems (click on the link on this page http://www.ico.gov.uk/Global/faqs/data_protection_for_organisations.aspx ) (which I’ve only scanned quickly) suggests that it is a relevant filing system, but for the reasons set out above I don’t think that gets you far.

  2. Andrew Watson

    Hi, on the DPA side there are two issues. Relevant filing systems dont end up being too much of an issue in the oublic sector as all recorded information held by a public body falls withion the definition of data under category (e) which catches unstructured manual files. Honestly with decent RM systems in place public authorities should have any unstructured files.

    On redaction you are right however it is possible to argue that the information can still be disclosed. You are entitled to your own data under s7 however where other people can be idenitifed from that data then it can still be disclosed under limited circumstances, see s7(4) and (6).

  3. Nick Langford

    Lucy, you are a treasure.

    (Will probably be excommunicated for saying that)

  4. Thanks for this. I had received the same query and hadn’t found the relevant rule, but couldn’t see any reason for the old rule having been abandoned. Glad you’ve cleared this up.

  5. Not really an issue in NZ except for court ordered psychologist reports. Generally LIP will automatically get copies of everything without any issue and I’ve not yet had any refused when requested to LIP’s I’ve been supporting. Lucky us…..!

  6. If you scanned the document into a pdf/text file rather than an image format (jpeg tiff gif etc),would you actually be taking a photograph, as defined by the Act? As all you are doing is copying the document (surly no different from bring in a pen and a piece of paper and copying it), rather than taking a photograph of it.

    As an aside, do/should all the TV/Press pictures outside of the Court of the participants entering or leaving, fall foul of this act?

    • Anony – one argument is that a digital photo of a person taken on an iphone would be a photo and therefore so must a photo of something else taken on the same device using the same process. the app is merely software that processes it but its still a camera. the alternative is that this is not what the act is intended to cover – not the mischief aimed at. the problem with that is that it is clearly intentionally drafted widely in order to catch any form of image (as it was then understood). sketches of witnesses are also prohibited.

      i should say I’m no expert on the CJA 1925 but I think you’ll find that those photos of people entering or leaving court are quite carefully taken from outside the “precincts” of the court as defined in the act. you know those black railings outside the rcj – they never take photos from inside the railings.

      any crim / media practitioners out there who are more familiar with this?

  7. I wonder if court staff are referring to the right copy of FPR2010 as it seems there are other copies floating around where Rule 29.12 just states “A copy of an order made in open court will be issued to any person who requests it on payment of the prescribed fee.”

    • And there is the answer to the mystery! The original FPR have a different 29.12 as per your comment (this can still be seen on the Justice site as if it were current, which is slightly disconcerting). The version of 29.12 I cited was inserted by the Family Procedure Amendment Rules 2012 art 25 – see here.

      Looks like the drafstmen and women did forget this one after all eh? So we weren’t all losing the plot!

      Thanks for your comment. Very helpful.

  8. I suspect that what people would really want from the court file is not the documents filed at court on their case (which they already have) but any correspondence including emails that they haven’t been copied into, and probably most importantly, any judicial notes taken of the hearings (which might for example, contain impressions of witnesses and evidence)

    I think it has to be a s7 Data Protection Act request – the court file no matter how chaotic (and we’ve all seen how the court keep and maintain their files) is covered by the Act. I couldn’t find anything in the Act that exempts a Court from s7 of the DPA (and there are other bodies or agencies who ARE exempt) and the only specific exemption for the judiciary is in relation to applications for judicial office or promotion.

    So, technically, I think a person could seek disclosure of any document in which they are identified, that is held by the Court (whether on a formal file or not) even if that were judicial notes from a hearing.

    In practice, I can’t see anyone getting such notes and I can’t see the usually bullish information commissioner going to war with judges who refuse it. (After all, when the Court write back and say ‘We asked the Judge if she made any judicial notes and she said that there was a combination of marking certain passages and noting page references, but the rest was in her head.’ how can that go any further?

    [There are also of course, the usual DPA quagmire of whether records that reference other people- as the court files would, would have to be redacted to the point where they become unintelligible]

    • Well they can have all correspondence they haven’t been copied into under the rule because it’s been “filed”. But what you say about judicial notes is interesting. As a matter of practice (not law) I have never heard of this being disclosed – although I was once given a file by a judge to search through for some purpose I now forget and in the course of looking I encountered a number of rather *entertaining* judicial notes.

      Normally a judge keeps his own notes in a hardback notebook which is crucially not on the court file – and this probably doesn’t fall under DPA (can a DPA expert help me out here?) There will be the odd note on a court file – most county courts use a tick box or pro forma for directions hearings and judges scribble instructions to court staff on these or on post-its. But as I say I think it unlikely a note of the judges impression or record of evidence would be on the file itself.

      Like you I’m not aware of an exemption that would cover judicial notes but I can anticipate the objections / practical difficulties.

      Perhaps most importantly is the almost certain fact that any manuscript note taken by a judge will be unintelligible without the need for redaction by virtue of the impenetrable handwriting that is a prerequisite of membership of the legal elite.

  9. Andrew Watson

    Hi, I jsut tried to post a comment and seem to have been spam filtered.

    • Can’t find anything from you in spam (I may have deleted by mistake – I get a lot of spam) – try again? This one worked…

  10. Andrew Watson

    OK, here goes again.

    My comment was about judicial notes in their handbooks. In principle these could be disclosable under a s7 DPA subject access request. Disclosure is required of all personal data held by the data controller unless an exception applies.

    If the notes relate to the individual then they may be personal data. However, given they are in hard copy and are unlikely to be classed as a filing system then they would fall into category (e) of the definition of data. That brings in additional limitations on the rights relating to the material in s9A and 33A.

  11. HMCTS at Petty France

  12. Thanks for the informative blog post. I’m a LiP approaching a final hearing and made a request to view the court file in my case. This has been refused by a judge, on the basis that I would have to explicitly request each document I would like to review under 29.12. Of course the whole point is to catch documents that you haven’t seen. Sigh…!

    • Well I think you are entitled to see any document sent to the court by another party (save for example for confidential address forms etc) – so you could ask for a class of documents “all documents sent to the court by NAME”? But although most documents will be either orders or documents filed by one or other party, you aren’t entitled to everything on the file.

  13. I am also having difficulties as a L.I.P. accessing the court file in the Central family court. Contradictory emails from court staff. ranging from “phone to make an appointment” to “you need a court order” . The latest is “the court staff will ask a judge for permission” . I did this in 2006 in the principal registry of the family division ( as it was then ,same court ) It was very straightforward then. I made an appointment and court staff were present and made copies for me ( without charging !) I wonder why things have changed ?

    • Well, no surprise that they will charge you. This is not new. You were lucky to get away with it before! But the rules on access to copies are no different as far as I am aware.

      • I have no problem about being charged. I just find it bizarre that the rules haven’t changed but the response of courts has changed. I have a hunch that it’s due to the enormous increase in litigants in person due to legal aid cuts and court staff cuts . Access to justice apart , what an almighty expensive mess the cuts in legal aid have caused ! I am not a lawyer but I am very familiar with subject access under the data protection act because of my profession. I can’t see any exemption under the act reference court files ( in fact the M.O.J. have been fined by the I.C.O ) Also Judge’s notes, they surely would have to identify the case which means they’re not exempt.

        • Off the top of my head I’m not sure about the DPA point (although I’m sure I’ve considered and explored it before in the distant past), but FPR set parameters and provide for things like confidential addresses, and delineate entitlement to docs. Would need to think about what takes priority and if you can get round FPR using DPA. Certainly a judge has power to make a specific order that overrides DPA but until that has happened (as opposed to administrative blocking by HMCTS staff), I’m not sure.

  14. Impossible to post without pathos. I am aware hypothetical judge *A (he doesn’t really exist, honest) could actually make stuff up in his judgement, but redacted it from the transcript (because obviously a judge should have the right to change the facts, right? – it’s legal) and of course because there is no actual audit on family court judges, and it’s all completely confidential, that particular hypothetical child abuse is to protect the child.
    QED (quite exceptionally disgusting).
    It seems almost impossible to obtain an actual data disc of a hearing, transcripts are legally censored by any judge who wants to, and cost hundreds. Yet in the US you pay $10 and get a disc.
    Oh, and that’s if you are lucky enough the clerk turned the recorder on, or the judge turned his mic. on.
    (Thank you for your informative blog)

  15. BTW I have had it told to me, not definitive, but in immigration courts that the Judges notes can be SAR’d.

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