Wednesday 21 March 2018

Public entitled to see legal papers, High Court rules

Dearbhail McDonald Legal Editor

THE High Court has ruled that members of the public are entitled to have access to documents that are opened in court.

Ireland is unique among countries with a common law system as it does not provide access to court documents.

The public and 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.

But the High Court has ruled, in a case involving property developer David Agar, that the public is entitled to have access to documents opened without restriction in open court.

High Court Judge Mr Justice Gerard Hogan said the open administration of justice is "a vital safeguard" in any democratic society which ensures the judicial branch is subjected to scrutiny.

"Any system of secret court hearings could pave the way for judicial arrogance, overbearing judicial conduct and abuse," he said.

The judge was ruling on an application by Mr Agar for access to court documents in a case in which he was not a party but where allegations had been aired in open court about him by George Tracey, a former business partner and "extremely close" friend.


Mr Tracey had claimed in a debt action brought against him by AIB that the bank had mismanaged his affairs, not least, he alleged, by allowing portions of loans supposedly drawn down by various companies jointly controlled by the two men to be misappropriated by Mr Agar, who emphatically rejected the allegations.

Mr Agar's legal team maintained a watching brief during the litigation between Mr Tracey and the bank, which secured an €18m summary judgment against Mr Tracey.

Judge Hogan expressed concern that the allegations had been ventilated in open court in circumstances where Mr Agar had no formal opportunity to respond or have his interests represented.

Mr Agar's legal team later sought access to affidavits which had been opened in court containing the allegations.

Lawyers for Mr Tracey, who has appealed Judge Hogan's ruling, indicated that their client would not consent to the release of the documents.

The Courts Service said it cannot comment on Mr Agar's case as it is under appeal, but said the issue is under review.

"The courts are heard in public, and in this regard the issues of access to court documents is one which is being considered by the Courts Service at the moment; taking into account issues of privacy, legality, practicality and resource implications," it said in a statement.

The Irish position is in stark contrast to the US, where court documents are electronically filed and available to view and for purchase by the public.

Irish Independent

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