Posted on | June 27, 2012 | 17 Comments
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!