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Who Will Guard the Guards? Supreme Court Determines the Rights of Non-Parties to Documents Used in Court Proceedings

14.08.2019 Commercial Disputes, Insurance

Ben Ogden

Ben Ogden Partner

Cape Intermediate Holdings Ltd v Dring [2018] EWCA Civ 1795

The Supreme Court has clarified the extent of a non-party’s right to request copies of documents filed with the court in a case of importance to all litigants concerned about the confidentiality of their documents.

The Asbestos Victims Support Groups Forum UK (the “Forum”) made an application for access to various documents used during a trial to which it was not a party. The trial was of a contribution claim by EL insurers against Cape Intermediate Holdings Ltd (“Cape”), a company involved in the manufacture and supply of asbestos. The trial had run its full course but the case then settled between the end of the hearing and judgment.

The Forum applied for a copy of all documents used at trial, including the extensive trial bundles which contained a significant quantity of disclosure. The application was made under Civil Procedure Rule (CPR) 5.4C, which reads:

  1. The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of –
    • a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it;
    • a judgment or order given or made in public (whether made at a hearing or without a hearing),…
  2. A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person.

At first instance, the Master ordered that the Forum be provided with the trial bundle, all witness statements, expert reports, transcripts and written submissions.

On appeal, the Court of Appeal determined that the “records of the court” under CPR 5.4C were rather narrower than the Master had decided. However, separate from the CPR, the court had an inherent jurisdiction to permit a non-party to obtain various documents. The Court therefore ordered that the Forum should be provided with:

  1.  all statements of case,
  2. witness statements, expert reports, and written submissions,
  3. subject to an application to the High Court judge, any other document in which confidentiality had been lost under CPR 31.22, or any document which was necessary for a non-party to obtain in order to meet the principle of open justice.

Both Cape and the Forum appealed. The issues for the Supreme Court were the scope of CPR 5.4(C), whether the court has an inherent jurisdiction to order third-party access to court documents, and (if it exists) the scope of that jurisdiction.

Policy-Based Approach

The Supreme Court began by considering the meaning of “records of the court” in CPR 5.4C, as well as other rules which provide for documents to be made public. However, the court appeared to find little assistance in these provisions and moved on to a more policy-based discussion.

The policy identified by the Supreme Court is to put non-parties into the position they would have occupied, had proceedings been mostly oral in nature. The Court considered that in the past, non-parties would have been given the opportunity to understand the issues in a case by virtue of opening speeches. In modern times, these speeches are no longer as accessible due to the large number of documents referenced and the extensive use of written submissions.

The Supreme Court was of the view that the open justice of an oral hearing should not be compromised by the use of written submissions, which are deployed for the purpose of saving time and money.

Open Justice

Considerations of open justice led the court to the issue of the court’s inherent jurisdiction. It was clear from the case law that an inherent jurisdiction to order non-party access to documents existed. This inherent jurisdiction extended to written submissions which had been used at a public hearing, witness statements standing as evidence in chief, and expert reports.

It was also clear from the case law that the court had a more general power to allow access to documents “read or treated as read in open court”. Documents “treated as read” were those documents likely to have been read out in court, had the trial been conducted orally.

What was not clear from the cases was whether merely referring to a document in court would make that document accessible by non-parties.

In answering this point, the Supreme Court took as its guiding principle that justice should be done and also be seen to be done in the open. The natural consequence of this principle is that the courts must have the jurisdiction to order non-party access to documents.

The Exercise of the Court’s Jurisdiction

In practice, the exercise of this jurisdiction should be guided by two principles. Firstly, it should “enable public scrutiny of the way in which courts decide cases”. Secondly, it should “enable the public to understand how the justice system works and why decisions are taken”.

Practices which render proceedings “less intelligible to the press and the public”, such as referring to but not reading out evidence, go against these principles. Therefore, in order to achieve open justice, the Supreme Court decided that access should be permitted to any document placed before the judge and referred to in the course of proceedings.

The court added a caveat to this broad rule. It remains incumbent upon the non-party applicant to show that open justice would be advanced by their accessing the documents they seek – access is not a right, but rather within the court’s discretion.

In practice, therefore, a balancing test will occur. The legitimate interest of the non-party in accessing the document is to be balanced against the legitimate interests of those who wish to retain confidentiality. Examples of interests which would go towards denying access are national security, the protection of children or mentally disabled adults, the protection of privacy, and the protection of trade secrets and commercial confidentiality. Proportionate cost is also relevant.

Finally, the court considered the issue of bundles. Trial bundles, the court decided, are not themselves the evidence or the documents in the case. Rather they are provided for the convenience of the parties and the court. While the court should never order access to marked-up bundles, the door was left open to access to bundles if they represent the most practical way of providing access to the documents.

The Supreme Court therefore varied the third paragraph of the Court of Appeal’s order, to the effect that the Forum could apply to the High Court judge for access to any document placed before the judge and referred to in the course of the trial, in accordance with the principle of open justice.

Comment

Most court cases are of little interest to the public and it is easy for the parties to treat them as private disputes. This case is a shot across the bow of such thinking, reminding parties that litigation is a public matter.

This is an important consideration not only for the parties to a dispute, but also for any non-party evaluating their chances of obtaining access to documents. Following the Supreme Court’s clarification as to the legal framework of such access, non-parties may now find it easier to obtain court documents.

This article was co-authored by Keith Rowbory, trainee solicitor at Ince.

Article authors:

Ben Ogden