Meet the attorney behind 50% of UPC access requests

Early in the new year, the UPC Court of Appeal in Luxembourg is expected to finally determine how accessible and transparent the court will, or wants, to be.

This potentially landmark development can be attributed to the the applicants who have demanded greater access to case documents, with one attorney in particular leading the charge.

Enter Christopher Stothers, partner at Freshfields, the man behind the request in Ocado v Autostore that is set to go before the appeals court—and no fewer than half of the six UPC access requests filed before the end of autumn.

Learning to walk

A long-term advocate of legal transparency, he tells WIPR why he was compelled to take action.

As he puts it: “Different countries may have different traditions when it comes to court access, which is fine.”

But when it comes to the UPC, he insists, cultural norms in certain locations need to be cast aside.

“It is a baby system. The UPC is learning how to walk at the moment and some things will be challenging.

“But when it comes to a court which is judging on behalf of 300 million people in 17 countries, it's really important that people can see and follow what is actually going on,” he explains.

In November, his efforts paid off when the UPC Nordic-Baltic division granted Stothers access to documents in Ocado, prompting Autostore to immediately appeal the decision.

And the ripple effect of his campaign continues. This month saw Mathys & Squire file a pair of lengthy petitions, one appealing for greater transparency in Munich’s division, and the other backing the Nordic-Baltic court’s decision in Ocado before the appeals court.

Culture clash

Stothers is acutely aware of the Europe-wide debate provoked, in part, by his quest for greater transparency.

“Access to justice is very much a national tradition, and it is much more prevalent in common-law countries where case law precedence means there is a greater importance in things being made public,” he explains.

Indeed, he is quick to point out that while the German judicial system isn’t renowned for its accessibility and transparency, it remains “highly respected”.

But confusion arising from the merging, or mish-mash, of contrasting judicial traditions within the UPC was inevitable, according to Stothers.

The court, he continues, was “a deliberate sticking together” of lots of national traditions in terms of both the agreement itself and the rules derived from “cross-country discussions and negotiations”.

“Sometimes that led to a resolution of how things should work because people knocked their heads together and decided what to do.”

But often, he explains, the decision boiled down to: we have multiple options so “we'll throw them all into one pot and let the courts work it out”.

Crucially, one of the burning questions to emerge is over the court’s controversial ‘rule of access’.

“That says that documents should only become available on the basis of ‘a reasoned request’ before a decision is taken by the judge-rapporteur after consulting the parties in the case,” adds Stothers.

And this, he deadpans, leaves the question: “What the hell does a ‘reasoned request’ mean exactly?”

“Is it the German-style approach where you have to show an imperative legal interest before you gain any sort of access, or will any reason suffice as long as it’s truthful and not misleading?” he queries.

Added to that, the procedure to file a request is itself “quite cumbersome”.

“You have to make an application on the CMS, and you can only do that when the case is visible. And if it’s not, then that’s another procedural barrier,” says Stothers.

“Then it has to be looked at by a judge and the parties, which becomes a very time consuming operation.”

Ocado/Autostore: A breakthrough?

In his bid to improve UPC transparency, Stothers has embarked on a strategic approach.

“I’ve deliberately looked for different cases because there's no point in making the same requests ten times and annoying everyone. So that’s why I'm deliberately making different ‘reasoned requests’ so we can get a better understanding of what the limits are.”

His big breakthrough arrived with the settlement between Ocado and Autostore at the UPC Nordic-Baltic division in Sweden—as well as the questions it left unanswered.

As Stothers puts it: “It's all very well saying ‘oh just wait for the judgment— and as long as the judgment is public—that's good enough. But Ocado v Autostore settled, so there is no judgment to look at.”

Such a scenario, he explains, leaves quite a large knowledge gap.

“We need to see what is triggering these cases, what is putting them to bed, what people have argued about, and what kind of things they may argue about in the future.

“It just delays the development of public confidence in the system because they can’t follow what’s happening.”

Opportunity knocks

The fact that the case was settled before the Nordic-Baltic division in Stockholm Sweden—a country that has prioritised public access to official documents since 1766—offered another opportunity.

“I filed there on the basis that I expected the judges there would have more of a national tradition giving access—when compared to other countries—and they would be more likely to do so,” he explains.

Yet, the initial excitement gave way to an anticlimactic disappointment. Despite filing an access request during the summer, Stothers was greeted by a period of silence during which “nothing happened” for weeks.