August 1, 2019

Supreme Court: Guidance given on access to documents for non-parties

The Supreme Court has confirmed the extent of a non-party's right to obtain documents used in court proceedings, and the principles to be applied when such a request is made.

The Supreme Court held that the constitutional principle of open justice meant that the court should be free, as part of its inherent jurisdiction, to grant public access to documents other than the statements of case, where an application is made by a non-party.

However, an applicant will need to explain how granting access will progress the principle of open justice, and the Court will need to carry out a fact-based balancing exercise.

Background

Cape Intermediate Holdings ("Cape") was involved in the manufacture and supply of asbestos, and was a defendant in a High Court trial to claims brought by employers' insurers.  The Asbestos Victim Support Groups Forum ("the Forum") sought access to all documentation used or disclosed at that trial, further to CPR Rule 5.4C.

Rule 5.4C provides that non-parties can obtain statements of case but that the court's permission is required to obtain "from the records of the court a copy of any other document filed by a party…"

At first instance, it was held that the Forum was entitled (subject to the court's permission), either under r5.4C or the common law, to all documents filed at court, including trial bundles and skeleton arguments.  Cape appealed the decision.

Court of Appeal

The Court of Appeal limited the documents to be disclosed by Cape to:

  1. Statements of case
  2. Witness statements, experts reports and written submissions
  3. Any further disclosure sought be considered before the High Court to determine whether the documents had lost confidentiality, had been read by the Judge/in open court or where inspection would meet the principle of open justice.

It was held that:

  1. The "records of the court" are documents kept by the court office as a record of the proceedings, principally "communications between the court and a party or other person". For example, "The receipt document for the trial bundles may be a record of the court, but not the trial bundles themselves".
  2. The following documents are also not "records of the court" (and so cannot be obtained by non-parties under r5.4C): trial documents such as witness statements, expert reports, skeleton arguments, opening or closing notes or submissions, and the trial transcripts.  However, the court has an inherent jurisdiction to allow non-parties to obtain copies of skeleton arguments/written submissions used in lieu of oral submissions as well as witness statements (including experts) whose evidence-in-chief would have been available for inspection during the course of the trial.
  3. As to the court's discretion, anyone with a legitimate interest should generally be given permission where documents were read by the court as part of the decision-making process. In this case, it was held that the same principle applies even if a case settles before judgment because the principle of open justice is engaged.

Cape appealed to the Supreme Court, arguing disclosure should have been limited to the statements of case, and that any inherent jurisdiction was limited extending only to the skeleton arguments per the decision in GIO Personal Investment Services.  Cape also argued that the Forum did not have a legitimate interest in the documents sought.

The Forum cross-appealed, arguing the Court of Appeal should not have limited the scope of r5.4C in such a manner.

Supreme Court

The Supreme Court unanimously dismissed the appeal and cross-appeal having considered the following issues:

Scope of CPR 5.4(2)

Fundamental to what may be obtained under this provision resulted from the meaning of "from the records of the court". Absent a definition in the CPR, the Supreme Court held that it "must … refer to those documents and records which the court itself keeps for its own purposes."

However, it held that the "current practice… to what is kept in the records… cannot determine the scope of the Court's power to order access to case materials in particular cases."  Why the records are kept may be different to reasons why court documents are sought by non-parties.

Is there an inherent power?

The Supreme Court held that the principle of open justice applies to all courts and tribunals exercising judicial power of state, and means that all courts have an inherent jurisdiction to "determine what that principle requires in terms of access to documents".   

It was held in Guardian News and Media that the default position is that public should have access to not only written submissions, but also to documents placed before the court and referred to during the hearing, not limited to those the Judge has read or been asked to read.

However, the Supreme Court held that the applicant has no right to access, and will need to explain how granting access will progress the principle of open justice.  By the same token, the Court will need to carry out a balancing exercise based on the facts.

The balancing exercise will consider "the open justice principle and the potential value of the information" against "any risk of harm… to the maintenance of an effective judicial process or to the legitimate interests of others."

The Supreme Court held that the legitimate interests that may preclude a request from being granted include national security, those of protected parties, trade secrets and commercial confidentiality.  Even in civil litigation, where a party may be compelled to disclose documents that remain confidential unless and until they are deployed for the purpose of the proceedings, even then there may be good reasons to preserve their confidentiality. The practicalities and proportionality of granting the request should also be considered, for example identifying and retrieving materials which are no longer available "may be out of all proportion to benefits to the open justice principle."  It was also made clear that a non-party seeking access should expect to pay the reasonable costs of their request.

Lady Hale noted an additional point about the general need for annotating or flagging documents.  It was held that "that there can be no question of ordering disclosure of a marked up bundle without the consent of the person holding it." Subject to the appropriate application being granted, a clean copy of a trial bundle would possibly be subject to disclosure.

Giving judgment, Lady Hale urged those responsible for drafting the court rules to give consideration to principles and practices which the claim raised. Argument on the extent of the obligation of the parties to co-operate with the court to further to open justice principle once proceedings are over were not discussed.  This was more suitable for a consultative process.

What can we learn?

  • The decision makes clear the breadth of the inherent jurisdiction of the courts and tribunals to order production of documents to third parties. The Supreme Court upheld paragraphs (i) and (ii) of the Court of Appeal order but replaced (iii) with an order that the application be listed to determine whether the court should require Cape to provide a copy of any other document, applying the principles from this decision.
  • As a result we may see more applications by third parties for documents.For example where they are considering whether to bring their own claim against the same defendant,or perhaps where they might be involved in other proceedings linked to the facts of the first set. This is subject to the caveat that non-parties will have to consider whether they can pass the relevant test, and must pay.
  • For those concerned about an increase in these applications, r5.4C does allow parties to apply to the court in advance for a pre-emptive order restricting the release of statement of cases to non-parties. Whilst r5.4C does not state specific grounds for restricting access, previously reported applications have focused on preventing access to confidential or commercially sensitive information.
  • It is possible that further cases with differing facts and circumstances will provide guidance on the principles laid down in this decision until such time as the rule bodies address the issues in a consultative process as proposed by Lady Hale.