Campaign for open justice update
Destruction by Civil Rules 1998 of Right to Trial in Open Court
The destruction by the CPR of the constitutional right to trial in open court (a right both of the parties and of the public) in certain categories of civil proceedings is an illegal by-product of Lord Woolf's Reforms which seems to have passed without notice by the legal profession. Didn't anybody think it strange that, for example, Landlord and Tenant possession cases for non-payment of rent should suddenly switch from public hearing in open court to private hearing in chambers in 26 April 1999? But that is a direct consequence of CPR Rule 39.2(3)(c) and Practice Direction 39PDD Para.1.5(2). How could mere rules of court and practice directions abolish the Common Law rule that trials must take place in open court? The answer is, they couldn't, and the relevant rules and practice directions are ultra vires. Nothing in the primary legislation, the Civil Procedure Act 1997, permits abolition of the Common Law rule of trial in open court, a rule conclusively upheld by the House of Lords in Scott v. Scott [1911-13] AERep 1 HL.
The Practice Direction 39PD Para.1.5 sets out a whole list of categories of proceedings where trial in private is now the rule: arguably nearly all unlawful (e.g. besides Landlord and Tenant cases, Consumer Credit Act 1974, mortgage repossession, and Protection from Harassment Act 1997 cases). Incredibly this Practice Direction was made by three of the most senior Judges in the land: the Lord Chief Justice, the Master of the Rolls, and the Vice-Chancellor: see  1WLR 1124. Are these judges bent on destroying the constitutional security of trial in open court? - or were they merely half asleep when they nodded through a set of practice directions dreamed up by some civil servants in the Lord Chancellor's Department?
Basic democratic rights must not be abolished without Parliamentary sanction. Having been refused access, as a member of the public, to Landlord and Tenant cases at Bow County Court by H.H. Judge Bradbury in November 1999, the writer's application for Leave to move for Judicial Review was duly filed in the High Court on 7 December 1999, case CO/4774/99- R v. Bow County Court ex parte Pelling. This application will be heard in open court at the Royal Courts of Justice on 26 January 2000. The legal consequence of a trial being unlawfully held in private is interesting: the whole proceedings become voidable at the option of any party: McPherson v. McPherson  AERep 105 PC,  AC 177. So every solicitor and counsel who has acted for a landlord or tenant who lost his case held in private is under a professional duty to advise the client that he can have the possession order etc. set aside and obtain a retrial in open court.
On 26 January 2000 leave was refused by Mr. Justice Keene who held that Section 1(3) of the Civil Procedure Act 1997 - "The power to make Civil Procedure Rules is to be exercised with a view to securing that the civil justice system is accessible, fair and efficient" - had altered the Common Law position and empowered the making of rules authorising proceedings to be held in private which formerly had to be in open court. That included trials of landlord and tenant possession cases for non-payment of rent.
It is not clear how holding trials in secret courts makes justice more accessible, fair and efficient.
- Dr. M. J. Pelling, the first two items reprinted from Contact, East London FNF Branch Newsletter, dec99, no.3