In our previous articles we have taken a closer look at transparency in litigations before the Unified Patent court (the UPC) and in the legal system of England & Wales.
In France, open justice is a core principle although there are tighter restrictions on non-parties being provided access to documents produced during proceedings than in the UPC and the Courts of England & Wales. This principle, set out in Article 6-1 of the European Convention on Human Rights, is also set out in Article 22 of the French Code of Civil Procedure, which forms part of a chapter on the guiding principles common to all civil courts, and Articles 11-1 and 11-2 of Law no. 72-626 of 5 July 1972 on the reform of civil procedure.
There are many practical consequences of this.
The first is that public access to courtrooms during oral proceedings and the delivery of judgments is in principle guaranteed, except where circumstances justify the trial being held in closed hearings, like where the proceedings relate to family law, where the protection of young people commands it, or for the protection of trade secrets as provided by Article L.153-1 of the French Commerce Code as introduced by Law no. 2018-670 of 30 July 2018.
The second is that court decisions handed down in civil matters are, in principle, accessible on request to third parties to the proceedings, as provided for in article 11-3 of Law no. 72-626 of 5 July 1972 and article 451 of the French Code of Civil Procedure, under the conditions specified by the circular of 19 December 2018. Here again, this principle is not absolute, since Article L. 111-13 of the French Code of Judicial Organisation, as amended by Law No. 2019-222 of 23 March 2019 on the 2018-2022 programming and reform of the justice system, provides that the surnames and forenames of the natural persons mentioned in the decision, parties or third parties, shall be concealed beforehand, as well as any other information likely to affect the security or privacy of these persons and their entourage.
With regard to the pleadings and exhibits filed by the parties in the course of proceedings, it is noteworthy that no text provides for them to be made available to third parties. Indeed, while the Code of Civil Procedure governs the way in which they must be communicated by parties to each other, there is no provision for third parties to request access to them.
What is more, any person making available to the public the pleadings and evidence of another party may be exposed to the risk of having to compensate the opposing party for the damage that this disclosure causes. Even more, if they contain private information, their disclosure may constitute a criminal offence or give rise to a claim for civil damages. Lastly, it is not out of the question for pleadings to be recognised as covered by copyright, provided that the lawyer who drafted them demonstrates their originality, so that the person who made them accessible to the public may be exposed to an infringement action. Thus, while the principle of open justice covers civil hearings and decisions, it does not extend to pleadings and evidence, access to which remains limited to the parties and their lawyers.
Key Takeaways
In France, open justice is a core principle but imposes tighter restrictions on non-party access to documents compared to the UPC and courts of England & Wales. Public access to courtrooms and judgments is generally guaranteed, except in cases involving family law, minors, or trade secrets.
However, pleadings and exhibits filed during proceedings are not accessible to third parties. Unauthorised disclosure of such documents can lead to compensation claims, criminal charges, or copyright infringement actions.
Conclusion
This culminates our three-part article series taking a look at these issues in the UPC, the courts of England & Wales and the French courts.
It is not surprising that the UPC has taken a considered approach to these issues to date; the value of a substantive pleading to a non-party could be considerable, beyond just enabling an understanding of a decision. The UPC's Court of Appeal guidance is welcomed, but it is likely that the principles of open justice will be tested further in due course, particularly because it is not yet a truly transparent system which some are calling for.
Parties to UK litigation will undoubtedly continue to behave pragmatically and collaboratively to share documents where appropriate, bearing in mind the principles which govern non-parties' access to documents.
Finally, in France non-parties will continue to have access to courtrooms and decisions, while access to pleadings and exhibits is expected to remain limited to parties.
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