Section numbers from the book are used. The book should be read too. Its content provides fuller explanations and context.
15.1 Open courts—a fundamental rule in common law
What was Scott v Scott?
The House of Lords judgment in the case of Scott v Scott in 1913 provides clear expression of the fundamental and general rule in UK common law that justice must be conducted openly. The rule was recognised earlier than this. But Scott v Scott set precedent on the extent to which the rule should apply, and so invigorated its effect. For context about the purposes (societal benefits) of open justice - for example, it helps ensure that the justice system is fair and therefore worthy of respect – see 15.1.1 in McNae’s.
No journalist was involved Scott v Scott. The case concerned a person’s right to tell the world what had happened in court proceedings in which that person was involved. But this House of Lords’ judgment has since 1913 been cited in many cases considering the extent of the media’s right, as the eyes and ears of the public, to report from the courts.
The following account of Scott v Scott is based on the House of Lords judgment.
The marriage ends
Scott v Scott was a ‘nullity’ case - that is, it concerned annulment of a marriage. Annie Maria Morgan and Kenneth Mackenzie Scott had married in 1899. But in 1911 Mrs Scott began civil proceedings to have the marriage annulled - declared null and void - on the basis that it had not been sexually consummated in those 12 years. Annulment would free her life from Mr Scott and let her wed again, if she chose to.
Matrimonial cases were at that time dealt with in a branch of the High Court, known as the Divorce Court, which had evolved from ecclesiastical courts. This court, following what was normal procedure in such nullity cases, appointed doctors to examine the couple physically. The court also ordered, because of the intimate nature of such evidence, that the case should thereafter be heard in camera (in private, with no members of the public permitted to be present). Mrs Scott saw the appointed doctor and was found to be a virgin. Mr Scott filed a document denying impotence, but did not submit himself to medical inspection. He then withdrew his defence to Mrs Scott’s action, and so the marriage was annulled.
Mrs Scott reveals what happened
In August 1911 Mrs Scott asked her solicitor Percy Braby to obtain a copy of the official transcript of the court case, made by the court’s shorthand writer, which he did. Further copies were typed out. Mrs Scott sent one to Mr Scott’s father, one to his sister and another to a third person.
Mr Scott reacted by asking the Divorce Court to commit his ex-wife and Braby to prison for contempt of court, because her sending of these transcripts had revealed to other people what was said at a hearing which the court had decided should be held in private. The transcripts disclosed the medical evidence concerning Mrs Scott, and the allegations of impotency. Mr Scott wanted the court to stop Mrs Scott sending the transcripts to anyone else, and to punish her and Braby for the disclosures.