Disclosure of Documents

Barings plc and others v Cooper Lybrand and others (CA NLJ 5 May)

In the course of proceedings against certain directors of Barings under the Company Directors Disqualification Act 1986 there were exhibited to an affidavit transcripts of interviews with the directors carried out by the Bank of England’s Special Investigations Unit. In proceedings for professional negligence brought by Barings against their accountants and auditors, the defendants sought disclosure of those transcripts. They were entitled to disclosure if the transcripts had ‘been made available to the public’ within the meaning of s82(2) of the Banking Act 1987. That raised the important issue as to how to reconcile the requirement that court proceedings should be open to the public so that the public could be aware of what happened in the court proceedings with the increasing resort to practices such as the judge reading documents in his room away from the public gaze, as encouraged by the CPR. If the judge did not state in open court what he had read, what should be assumed to be the position in the absence of evidence to the contrary? This was a different although related question to that which arose under CPR Part 5 on an application for permission to inspect documents on the file of the court and was also distinct from the question of the use to which documents disclosed on discovery could be put. Practices adopted by the courts and parties to ensure the efficient resolution of litigation should not be allowed adversely to affect the ability of the public to know what was happening in the course of the proceedings. When documents were put before the court for the purposes of being read in evidence, as here, the onus was no longer on the person contending they had entered the public domain to show that that had happened. The onus was on the person contesting that was the position to show that they did not enter the public domain because, for example, the judge did not in fact read them or because of the need to protect the ability of the court to do justice in a particular case. That was the only practical solution. The judge could not be cross-examined as to what he had or had not read. On the facts of the case the documents were ordered to be disclosed.