Last month, the Supreme Court was called upon in the case of Cape Intermediate Holdings Ltd v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK (2019) UKSC 38 to determine whether the public (i.e. a non-party) could obtain court documents in a civil case; balancing the need for open justice against commercial confidentiality/privacy interest.
When Can a Third Party Request Documents?
Once proceedings are issued in a civil claim, the Civil Procedure Rules 5.4C governs the supply of documents to a non-party from court records and confirms that they can obtain statements of case (e.g. claim form/particulars of claim, defence, reply etc but not any documents filed or attached to the statement of case), or a judgment or order given/made in public (with/without a hearing).
There are different rules if the statement of the case was filed before 2 October 2006 and various exceptions and conditions to this rule.
A non-party to the proceedings can obtain a copy of any document/correspondence filed by a party/with the court if the court gives permission following an application to do so. This is what happened in the recent case.
Caper Intermediate Holdings Ltd v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK (2019)
Cape Intermediate Holdings Limited (“Cape”) were manufacturers and suppliers of asbestos. A claim was brought by insurers of employers for a contribution of damages they had had to pay to previous employees who has contracted mesothelioma. This went all the way to a trial but the parties settled prior to delivery of judgment.
The Asbestos Victims Support Group Forum UK (“the Forum”) applied for disclosure under CPR 5.4C.
At first instance, permission was granted under either CPR 5.4C/common law for disclosure of the trial bundle (including documents in a core bundle), witness statements, transcripts and written submissions. The Court of Appeal allowed Cape’s appeal and the order granting permission was set aside. “It held that the “records of the court” for the purpose of the discretion to allow access under CPR rule 5.4C (2) were much more limited than she had held.” The Court of Appeal allowed disclosure of a more limited group of documents.
Both parties appealed arguing that the limitation of disclosure was either too wide or too restricted.
The Media Lawyers Association intervened on the appeal to the Supreme Court arguing that “the way in which most members of the public are able to scrutinise court proceedings is through media reporting. The media are the eyes and ears of the public. For this, media access to court documents is essential.”
The Supreme Court was called upon to decide on three important issues:
- What is the scope of CPR rule 5.4C (2)?
- Is access to court documents governed solely by the Civil Procedure Rules, save in exceptional circumstances, or does the court have an inherent power to order access outside the Rules?
- If there is such a power, how far does it extend and how should it be exercised?
The test for CPR 5.4C centred on what was the definition of ‘the record of the court’. The Supreme Court held that this must refer to “those documents and records which the court itself keeps for its own purposes. It cannot refer to every single document generated in connection with a case and filed, lodged or kept for the time being at court.”
But the Supreme Court went on to distinguish this from the inherent power to order access because “The purposes for which court records are kept are completely different from the purposes for which non-parties may properly be given access to court documents. The principle of open justice is completely distinct from the practical requirements of running a justice system.”
The Supreme Court held that it had inherent jurisdiction to allow (wider) access based on the constitutional principle of open justice (rather than CPR). The question for each court is how that principle should be applied to “enable the public to understand and scrutinise the justice system”.
It should apply to written submissions and arguments, but also documents which have been placed before the court and referred to during a hearing (not just documents which a judge has been asked to read or has read) so as to “enable the public to understand how the justice system works and why decisions are taken”.
But just because a court has the power to grant access, it will not do so unless the party seeking access can show why he requires access and how access will advance the open justice principle.
There may well be a good reason not to grant access, such as national security, protecting the interest of a child or mentally disabled adult, protection of privacy interest, protection of trade secrets and commercial confidentiality, etc
Then there will be relevant considerations such as practicalities and proportionality of providing access.
Parts of the order made by the Court of Appeal remained and parts were remitted to decide on whether access to at any other document placed before the judge and referred to in the course of the trial should be disclosed in accordance with the principles of open justice.
When might a third party require disclosure?
In this case, the Forum required disclosure as they felt that the documents used at or disclosed for trial would provide valuable information about the knowledge of the asbestos industry which would assist all parties and the court in other asbestos-related disease claims.
Clearly, to justify access beyond CPR5.4C and to engage the principle of open justice, there must be a much wider benefit to the public.
Each case will be decided on its own facts and given the costs and implications, such an application should not be made lightly.