High Court refers case to Court of Justice of the EU over Courts Service’s refusal to provide public access to litigation documents

national | environment | press release Sunday September 08, 2019 21:46 by foie - Friends of the Irish Environment

PRESS RELEASE FRIENDS OF THE IRISH ENVIRONMENT FOR IMMEDIATE RELEASE

High Court refers case to Court of Justice of the EU over Irish Courts Service’s refusal to provide public access to litigation documents

Crucial point of transparency law will be determined by Court of Justice

A challenge regarding the Courts Service’s refusal to provide public access to litigation documents relating to a High Court environmental case that concluded in 2016 has been referred to the Court of Justice of the EU in Luxembourg.

The Courts Service of Ireland maintains a policy that only the parties to litigation and their lawyers may obtain access to litigation documents on request (e.g. statements of grounds/defence, affidavits, written submissions, court orders, etc.), with access being granted in addition to “bona fide members of the press”.

The result is that while the public is generally allowed to sit through and take notes of most civil proceedings if they are in a position to attend court in person, the public may not generally obtain access to the documents that parties’ lawyers and the judge are referring to in court, even where the documents are produced for the State or for public bodies using public funds.

This inaccessibility means that litigants in subsequent similar cases and other interested persons cannot benefit from direct knowledge of the previous arguments and evidence presented or check arguments for consistency over time. It also means that lawyers may have to effectively reinvent the wheel each time a new case is taken.

In 2016 FIE wrote to the Courts Service requesting access to the documents in respect of an environmental case that had been heard by the High Court in which FIE had not participated but in which it had an interest in the arguments made. FIE cited the Aarhus Convention and EU/Irish law implementing that Convention in its request. The Courts Service reiterated its policy and refused access to the documents. FIE appealed the Courts Service’s decision to the Commissioner for Environmental Information, who ruled in favour of the Courts Service in 2017.

FIE appealed the Commissioner for Environmental Information’s decision to the High Court in September 2017. After a two-day hearing in April 2019, Ms. Justice O’Regan decided to adjourn the case in order to ask the Court of Justice of the EU for a preliminary ruling on a point of interpretation of EU law.

The question relates to the meaning of acting in a “judicial capacity” for the purpose of EU Directive 2003/4/EC on public access to environmental information. Where a body is acting in a judicial capacity, Member States may exclude them from the definition of “public authority”; public authorities are in principle open to access to environmental information requests pursuant to the Directive, subject to limited exceptions.

FIE argued in its case before the High Court that there is a direct read-across from an earlier judgment of the Court of Justice of the EU, relating to acting in a “legislative capacity”. That case decided that once the legislative process has ended the body in question can no longer be said to be acting in a legislative capacity and so must in principle be open to an access to environmental information request. The same must be true, FIE argues, of acting in a “judicial capacity” in that once the case in question has concluded (with a judgment and no appeal), the body in question is no longer acting in a judicial capacity in holding the documents.

The Commissioner for Environmental Information and the Courts Service maintain that FIE is not entitled to access the litigation documents in question, and that in controlling access to litigation documents the Courts Service, acting on behalf of the judiciary, acts indefinitely in a judicial capacity, even after a case has ended with no appeal.

The case has been allocated case number C-470/19 by the Court of Justice in Luxembourg, and a hearing date is awaited.

Commenting on the High Court’s decision to refer the case to the Court of Justice, FIE director Tony Lowes commented:

“The courts have shown themselves much more willing in recent years to make preliminary references on points of interpretation of EU law. We are very happy that this crucial point of transparency law will be determined by the Court of Justice in Luxembourg, ensuring a consistent interpretation across all EU Member States.'

FIE has other important judgments and hearings pending before the courts:

• Climate Case Ireland, where we expect a judgment from the High Court on 19th September on our challenge to the National Mitigation Plan for failing to meet our obligations to reduce Greenhouse Gas Emissions;
• Our challenge to the new Peat Regulations that seek to take large-scale industrial peat extraction outside the planning permission system, which was heard by the High Court last week with a judgment due on 20th September.
• Our challenge to the proposed Shannon LNG plant on the Shannon and this present case on access to litigation documents - both before the EU Court in Luxembourg;
• Our challenge to the National Development Plan for again failing to meet our legal obligations to reduce Greenhouse Gas Emissions where a hearing in the High Court is scheduled for 4 days beginning 10 March, 2020.
• An Appeal to Supreme Court to reverse the decision of the High Court to allow An Bord Plenala to dismiss a request for a ruling on the status of a peat extraction site because FIE could not supply the names of all the owners.
• A case against the Legal Aid Board for refusing to grant legal aid for FIE's challenge to the National Developoment Plan.
• One of six international litigants seeking to challenge in the European General Court in Luxembourg the treatment of forest biomass as a renewable fuel in the European Union’s 2018 revised Renewable Energy Directive.

'This run of vital cases just goes to show how important public interest environmental litigation can be', Mr. Lowes said.

FIE is represented by O’Connell and Clarke Solicitors instructing John Kenny BL and Jerry Healy SC.

1. The High Court’s request for a preliminary ruling in FIE’s access to litigation documents case is available HERE.https://drive.google.com/open?id=0B1_Bbh7gmHCvNFpfZm9KMmxqN0RvRG1WaGE5elBlbzJtd2k4

2. The “legislative capacity” case that FIE argues can be read-across from is Case C-204/09 http://curia.europa.eu/juris/document/document.jsf?text=&docid=119426&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=5718369 Flachglas Torgau:

3. The Commissioner for Environmental Information’s July 2017 decision, which FIE appealed to the High Court resulting in the present preliminary reference, is HERE. https://www.ocei.ie/decisions/dCEI_16_0038-Friends-of-the-Irish-E/index.xml

4. The website for the challenge to woody biomass is HERE. http://eubiomasscase.org/the-case/