December 20, 2018

R. (on the application of British American Tobacco (UK) Ltd) v Secretary of State for Health

Judge allows non-party access to documents and questions relevance of the reason for the request

CPRr 5.4 C provides that non-parties can obtain statements of case (which includes the claim form, particulars of claim, defence and reply - but not documents filed with them), but the court's permission is required to obtain "from the records of the court a copy of any other document filed by a party…"

In the recent decision of Cape Intermediate Holding v Dring, the Court of Appeal held that "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" so eg the list of documents but not the disclosed documents themselves, and not trial witness statements or trial expert reports (although the court has an inherent jurisdiction to allow non-parties to obtain copies of witness statements of witnesses (including experts) whose evidence stands as evidence in chief and would have been available for inspection during the course of the trial). It was held that there is no inherent jurisdiction, though, to allow non-parties to obtain access to trial bundles and trial documents even if they have been referred to in skeleton arguments/written submissions, witness statements, expert reports or in open court).

In this case, the non-party sought the disclosure of expert reports and witness statements as well as other documents (eg submissions prepared by civil servants and sent to the defendant) referred to in the statements of case. Green J said that he had an inherent jurisdiction to order disclosure of the documents in question, even though they did not all fall within the scope of the CPR. Documents which are read by judges sitting in open court before the hearing starts are also still an integral part of the court proceedings, even if those attending will be largely oblivious as to the content of that material.

The judge concluded that his "power should be exercised presumptively in favour of disclosure" in cases like this one. Furthermore "the principle of open justice by its very nature has a wide class of beneficiary". In Cape, the Court of Appeal had confirmed that the applicant needed a "legitimate interest" in inspecting documents before permission is given. In this case, though, the judge said that it was not evident why the reason for the request should be determinative: "Since, with only very limited exceptions, any member of the public is entitled to walk unhindered and without having to give an explanation, into a court to witness proceedings, it is hard to see why such a person making a request for documents which assists an understanding of those proceedings, should have to justify the request".