Author: Syedur Rahman
10 March 2020
5 min read
Syedur Rahman of Rahman Ravelli outlines the position and explains the significance of a Supreme Court case that considered the issue.
A Supreme Court judgement made clear the extent of the court’s discretion to allow non-parties access to documents in a civil claim.
In Cape Intermediate Holdings Ltd v Dring , the Supreme Court explained the powers that courts have in terms of ordering access. This is in relation to both the Civil Procedure Rules and a court’s inherent jurisdiction when it comes to the principle of open justice.
Cape is an asbestos manufacturer and supplier. It had been the defendant to claims brought by the insurers of employers who had paid damages to employees that had contracted the cancer mesothelioma due to exposure to asbestos. The litigation, which was settled after a six-week Queen’s Bench Division trial but before judgement was given, had generated huge amounts of hard copy and digital documentation. After the settlement, a without notice application was made by Dring on behalf of the Asbestos Victims Support Groups Forum UK (the Forum), for access to the trial bundles, transcripts and other documents. The Forum argued that these documents would contain information that would help litigants and the courts understand the issues involved in asbestos disease claims.
The application was made under CPR 5.4C - which governs the supply of documents to non-parties from court records - and on the basis of the court’s inherent jurisdiction to order access. CPR 5.4C(1) provides that a non-party to proceedings may obtain from the court records a copy of a statement of case and judgment or order made in public. CPR 5.4C(2) provides that in addition, if the court gives permission, a non-party may 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 other person.
The court found that the Forum had a legitimate interest in bringing the application and that the court had had jurisdiction to order access to all the material sought; either under CPR 5.4C(2) or at common law. The court ordered access to those documents used in or disclosed for the trial, including the hard-copy trial bundle, transcripts and written submissions. But it did not order access to an electronic bundle which contained all of the disclosed documents, including those disclosed but not referred to in court.
An appeal brought by Cape was heard by the Court of Appeal. That court allowed Cape’s appeal, holding that the ‘records of the court’ for the purposes of CPR 5.4C(2) are much more limited than had been held by the previous court. Citing GIO Personal Investments Services Ltd v Liverpool and London Steamship Protection and Indemnity Association Ltd , it held that there was no inherent jurisdiction to allow non-parties access to trial bundles or documents referred to in skeleton arguments, written submissions, witness statements, expert reports or in open court, simply because they had been referred to in the hearing.
It limited the disclosure to the Forum to:
It also ordered that the application for further disclosure be listed before the trial judge or another High Court judge to decide whether any other documents had lost confidentiality and had been read out in court or by the judge, or where inspection by the Forum was necessary to meet the principle of open justice.
Cape then appealed to the Supreme Court. The company argued that:
* the disclosure should have been limited to the statements of case held on the court file
* that the scope of any inherent jurisdiction of the court was very limited and could only extend to skeleton arguments or written submissions relied on in court
* that the Forum did not have a legitimate interest based on the public interest in open justice in the content of the documents it was seeking.
The Forum cross-appealed on the ground that the Court of Appeal had been wrong to limit the scope of Rule 5.4C in the way that it had done.
In judgement, the Supreme Court dismissed the appeal and the cross-appeal. Both parties were ordered by the Supreme Court to return to the High Court.
In announcing the Supreme Court’s judgement, Lady Hale said that the questions that had needed to be considered were:
Lady Hale observed that while CPR 5.4C(2) allows non-parties to obtain documents from ‘the records of the court’, there is no clear definition of the records of the court, or what they should contain. She explained that the reasons court records are kept differ from the purposes for which non-parties could be given access to court documents. For that reason, current practice for keeping court records cannot determine the scope of the court’s power to order access to case documents.
The Supreme Court acknowledged the Court of Appeal’s “unenviable task’’ of trying to reconcile the different approaches taken in GIO and R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court . In the Guardian case, the Court of Appeal had held that where documents had been placed before a judge and referred to in proceedings, the default position should be that access be permitted on the open justice principle – and that in evaluating possible grounds for opposing access, the court must carry out a fact-specific balancing exercise. But the principles laid down in Guardian were endorsed by the majority of the Supreme Court in Kennedy v Charity Commission  and unanimously by the Supreme Court in A v British Broadcasting Corporation .
Lady Hale said there was no doubt about the principles to be applied. The question was how they are applied in a particular case; which is where the balancing exercise mentioned earlier is required.
Her judgement makes it clear that the constitutional principle of open justice is applicable to all courts and tribunals. There is no limit to the discretion of such a body to grant non-parties access to documents and the court rules do not cover every possible circumstance where a non-party may be given such access. The courts have an inherent jurisdiction to determine what that principle requires in each case regarding access to documents. That jurisdiction cannot be limited to what the judge has read (or been invited to read), although Lady Hale stated there could be reasons – for example, national security - for denying access.
According to Lady Hale, the rules are to be considered a minimum. While the starting point is that access should be granted, the onus is on the applicant to persuade the court that there is a good case for allowing access outside of the rules. Such applications should, according to the Supreme Court, be made at the earliest possible opportunity; ideally when the trial is ongoing.
The Supreme Court has asked the Civil Procedure Rule Committee (CPRC) to consider the issues raised by Cape; in particular, the extent to which parties are obliged to co-operate with the court after proceedings have finished in order to further the principle of open justice.
This article was also featured on Lexology.com.
Syedur Rahman is known for his in-depth experience of serious fraud, white-collar crime and serious crime cases, as well as his expertise in worldwide asset tracing and recovery, international arbitration, civil recovery, cryptocurrency and high-stakes commercial disputes.