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

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


Ben Ogden

Ben Ogden Partner

Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38

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 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, a company involved in the manufacture and supply of asbestos. The trial had run its full course but 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 Forum applied using a provision of the Civil Procedure Rules (rule 5.4C) which allows the provision of statements of case, judgments and orders and, if the Court permits, other documents from the records of the court filed by a party.

Although the Supreme Court discussed CPR rule 5.4C, it concluded, mindful of principles of open justice, that the court has an inherent jurisdiction to order non-party access to documents, a power which goes beyond that provided in the Rules. The inherent power should be exercised in accordance with 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”.

In practice, the power is to be exercised via a balancing test, weighing the legitimate interests of the non-party (which must be in accordance with the principle of open justice) against the legitimate interests of those wishing to deny access. Those countervailing interests include national security, the protection of children or mentally disabled adults, the protection of privacy, and the protection of trade secrets and commercial confidentiality, and disproportionate cost.

The Supreme Court ordered the Forum be provided with all statements of case (a power under the Rules), and the witness statements, expert reports, and written submissions. That provides more material than may have been expected, but derives from the fact that all those documents were discussed or fundamental to the conduct of the trial (which took place in open court). 

Interestingly the Court sent back to the High Court the question of whether any other document placed before the judge and referred to in the course of the trial should be produced to the Forum. Most obviously under consideration was the trial bundle, and, in accordance with the principle of open justice, it seems the Supreme Court expected all parts of that which were used in open court to be produced.

Read the full article here.

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

Article authors:

Ben Ogden

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