BPSG Ltd v The Courts Service

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 28 March 2017
• Neutral Citation: [2017] IEHC 209
• Court: High Court
• Docket Number: [2013 No. 961 JR]
• Date: 28 March 2017

BETWEEN

BPSG LIMITED, TRADING AS STUBBS GAZETTE

APPLICANT

AND

THE COURTS SERVICE

THE MINISTER FOR JUSTICE AND EQUALITY

IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

[2017] IEHC 209

Baker J.

[2013 No. 961 JR]

THE HIGH COURT

JUDICIAL REVIEW

Constitutional & Administrative law – Disclosure of unregistered judgments of courts – The Courts Service Act, 1998 – Art. 35.2 of the Constitution – Art. 4 (3) of the Treaty on European Union – Art. 56 of the Treaty on the Functioning of the European Union (“TFEU”) – Public administration of justice – Risk of liability in disclosure of judgments – Data Protection Acts 1988 to 2003 – Art. 46 of the Freedom of Information Act 1997

Facts: The applicant sought an order of certiorari for quashing the decision of the first respondent for withdrawal of access to the records of judgments maintained in the District and Circuit Court offices in the State. The first respondent contended that it prohibited access of those records keeping in lieu of its obligations under the Data Protection Acts 1988 to 2003. The first respondent argued that the judiciary was vested with control of those records and that the first respondent's interference in the judicial functions was barred under art. 35.2 of the Constitution, which ensured independence of the judiciary. The first respondent further contended that in order to avoid any liability that might arise by the disclosure of those documents, the first respondent took the decision to withdraw access of those documents. The applicant submitted that the denial of access was prejudicial to the interests of its business of providing credit referencing and credit management.

Ms. Justice Baker refused to grant the desired relief to the applicant. The Court held that the public administration of justice entitled the public accessibility to the court process but not the information generated by administration after the conclusion of the public hearing. The Court observed that in order to ensure due administration of justice, approval of the court must be sought before concerned records could be made available, keeping in mind the interests of public in general. The Court held that judgments registered in the High Court were made available to the public pursuant to the Judgment (Ireland) Act 1844; however, the same was not applicable to the judgments of the District Court and the Circuit Court. The Court held that art. 56 of the TFEU, which ensured free movement to person and services within the Member State did not call for providing the information that did not have a public character and created by an administrative action. The Court held that since there was no legislative measure to regulate the access of the said records, the first respondent was justified in refusing access to those documents in order to avoid any risk of liability that the first respondent might face in future. The Court noted that art. 46 of the Freedom of Information Act 1997 was inapplicable to the records and proceedings of the court.

JUDGMENT of Ms. Justice Baker delivered on the 28th day of March, 2017.

1 The applicant is a limited liability company which trades under the name Stubbs Gazette as a provider of credit referencing, credit management, credit scoring and other information services to businesses, public bodies and individuals. Stubbs Gazette is a publication with a long history in Ireland and has traded here since it was established in 1828. Until 2008 the company was owned by the international credit rating agency, Dun & Bradstreet, and in that year BusinessPro, the plaintiff, acquired its worldwide rights to publication.

2 The first defendant is a statutory body established under the Courts Service Act 1998, with the stated function of managing the courts in the State, providing information on the courts system to the public and providing facilities for users of the courts. The second respondent is a minister of government and a corporation sole and is sued as the body having control and oversight over the Courts Service. The fourth respondent is sued in her representative capacity.

3 The applicant commenced application for judicial review on 18th December, 2013, by way of an ex parte application, seeking an order of certiorari and declaratory relief regarding the withdrawal of access to the records of judgments maintained in the District and Circuit court offices in the State.

4 Leave to bring judicial review was granted by O'Malley J. on 18th December, 2013.

Grounds of claim

5 For many years the Courts Service had provided, on an ad hoc basis, access to the internal court records of unregistered judgments in the District and Circuit Courts. In 2010 access to this information was withdrawn by Courts Service. Certiorari is sought that the decision be quashed and the applicant seeks a declaration that the failure or refusal of the Courts Service to provide details of unregistered judgments is in breach of Articles 34.1, 40.3, 40.6.1 and 43 of the Constitution, and that the failure or refusal has the effect that the State is in breach of Article 4(3) of the Treaty on European Union, and Articles 49, 56, 101, 102 and 106 of the Treaty on the functioning of the European Union (‘TFEU’), in that the decision impacts the applicant's freedom to provide services and do business, the right to freedom of expression, including the right to receive information of the kind at issue and that the decision is unlawful because of the failure of the Courts Service to provide adequate reasons.

6 The other grounds of the claim will appear in the course of the judgment.

Grounds of opposition

7 The respondents argue that the approach taken by the Courts Service to the request for access to the cause books was a lawful exercise of its authority and statutory competences under the Courts Service Act, 1998, and in particular that it was entitled to take the decision in the light of its obligations under the Data Protection Acts 1988 to 2003 (‘the Data Protection Acts’), and the legal rights and obligations of third parties under that legislative scheme. Further, in answer to the argument that the decision to withdraw access to the books and records was unreasonable or arbitrary it is pleaded that as the information maintained in the records is not, and cannot by its nature be, either complete or up to date, it acted reasonably and in accordance with the Constitution, the European Convention on Human Rights Act 2003, the Charter of Fundamental Rights of the European Union and the Data Protection Acts, and common law in making the decision it did.

8 Finally, the first respondent pleads that the custody and control over court records vests in the particular judges and courts by operation of law, and that Article 35.2 of the Constitution which enshrines the independence of the judiciary, limits the ability of the Courts Service to interfere with the judicial functions, and ipso facto with the mode of control by a particular judge of his or her court records.

Relevant background facts

9 The applicant avers that for a period of approximately ten years up to October, 2010 the Courts Service made details of unregistered judgments of the District and Circuit Courts available for public inspection. A UK-registered company, Registry Trust Limited (‘Registry Trust’), obtained details of judgments through having access to the cause book records of courts and court offices throughout the State, and by having its agents transcribe details of unregistered judgments from those books. The applicant in turn purchased reports of these unregistered judgments from Registry Trust for the purposes of its credit referencing, business information, and other related services.

10 In or about October, 2010 the Courts Service advised that it considered that as a matter of law no general public right of access to the records exits and withdrew access by Registry Trust to the cause books of the relevant courts.

11 On 15th December, 2010 Mr. Treacy had a meeting with John Coyle, the Head of the Circuit Court and District Court Operations Directorate in the Courts Service. In the course of that meeting Mr. Treacy outlined his concerns, and the effect the decision would have on businesses, and access to credit generally within the country. Mr. Coyle says that he explained the background to the decision and the particular concerns.

12 On or around 4th March, 2011, High Court proceedings against the Courts Service were instituted by Registry Trust bearing record number 2011 No. 2084 P arising from the withdrawal of access, and the applicant did not seek to be joined or to have any involvement in those proceedings.

13 The applicant was informed by Registry Trust sometime in the summer of 2013 that its proceedings against the first respondent had been compromised without admission of liability by the Courts Service.

14 The applicant, then, by letter of 24th September, 2013 wrote to the Courts Service and requested a meeting to discuss the reasons for the withdrawal of access to the court records. In a reply of 1st October, 2013 it was stated that the Courts Service did not regard itself as required by law to make available for public inspection the cause books of the relevant courts, and that these were not public records. Concern was also expressed that the making available of such records might expose the Courts Service to challenge under the Data Protection Acts. Finally, it was said that no warranty could be given by the Courts Service as to the accuracy or completeness of the records, as they did not show on the face of the record whether the relevant judgment had been satisfied in whole or in part.

Is the application out of time?

15 The respondents make a preliminary procedural argument that the application is out of time as access to the relevant records ceased in or about the month of...