Guardian News & Media Ltd v Rozanov and EFG Private Bank Ltd
The Employment Appeal Tribunal (EAT) has allowed an appeal by The Guardian which was requesting copies of documents used in an Employment Tribunal for journalistic reporting, as such access was in accordance with the principle of open justice.
Mr Rozanov was a former employee of EFG Private Bank Limited (EFG), having been their UK Market Co-ordinator for Russia, Eastern Europe and other CIS countries. He brought claims against EFG, claiming that he had been subjected to a detriment and subsequently dismissed for making several protected disclosures relating to compliance and regulatory requirements.
Mr Rozanov lost. Seven weeks after the parties received the decision from the Tribunal, a journalist from The Guardian wrote to the Tribunal to request copies of a number of documents, including the ET1 and ET3, as well as witness statements, skeleton arguments and documents that were referred to in the course of the hearing as well as in the Tribunal’s decision. The journalist claimed that the decision raised matters of legitimate public interest, and that the documents were being requested for journalistic reasons.
Mr Rozanov did not object to the request. However EFG did object, citing a number of reasons why the documents should not be provided, such as that the Tribunal had no power to require a party to provide the documents, and that the Tribunal should exercise its discretion and reject the request.
The Tribunal decided that the ET1 and ET3 could be provided to The Guardian, but that there was no obligation on EFG to provide the other documents. The Tribunal said that The Guardian’s reasons for obtaining the documents did not advance either of the two principles of open justice, because the application did not seek to look at the treatment of Mr Rozanov, or the Tribunal’s investigation. In addition, The Guardian application was made months after the hearing had concluded, so to provide the other documents requested would require an order for disclosure to be made against EFG. The Tribunal felt that such an order was disproportionate when weighed against the principle of open justice.
The Guardian appealed this decision and won at the EAT. Contrary to the Tribunal, the EAT felt that the principle of open justice was strongly engaged here. Also, it felt that the public interest in the matter was something that should have been considered in favour of granting the application. Instead, the Tribunal had given greater weight to the inconvenience involved in providing the documents to The Guardian.
Whilst the decision of the EAT in this case does not change the law and is perhaps unsurprising, it serves as an important reminder of not only the principle of open justice, but also the obligations on parties to comply with the principle when preparing for trial. There should always be a copy of the bundle and spare documents for the press in case they are in attendance and reporting on the matter. The press are able to report on cases being heard in the Tribunal since it is a forum that is also open to the public and, by extension, they are entitled to see documents referred to in open hearings.
This may be particularly relevant where the case involves reputational issues.
Legal advisers (both external and in-house) should ensure that the right of the press to see documents does not come as a surprise to clients and should bear this right in mind throughout trial preparation.