In Cape v Dring  EWCA Civ 1795, the Supreme Court has made clear the breadth of the courts' jurisdiction to allow third parties to access documents held by the courts in relation to litigation. It will still be necessary for an applicant seeking access to those documents to pass a test balancing the principle of open justice against the risk of harming the maintenance of the judicial process or legitimate interests of others. However, the extent to which third parties can potentially access documents in litigation may be of surprise and concern to litigants in proceedings which are sensitive for commercial or other reasons. In this briefing we review the judgment and its implications.
The case concerned claims brought against Cape by insurers. Insurers had paid out under employers' liability policies in respect of mesothelioma claims, and were seeking a contribution from Cape, which was alleged to have negligently produced asbestos insulation boards. There was voluminous documentation produced for the trial, and various court bundles. The trial took place, but before judgment was delivered the dispute was settled. The Asbestos Victim Support Groups Forum (UK) ("the Forum") sought to obtain copies of all the documents used at or disclosed for trial, including the trial bundles and transcript, in order to obtain information to assist in other cases.
The Forum's application was made pursuant to Rule 5.4C of the Civil Procedure Rules ("CPR"). Rule 5.4C(1) provides that non-parties can obtain statements of case (but not documents filed with or attached to them) and judgments or orders made in public. CPR 5.4C(2) provides that with the court's permission a non-party may obtain "from the records of the court a copy of any other document filed by a party…"
This issue was considered by the High Court, and then subsequently the Court of Appeal. In broad terms the Court of Appeal ordered that the Forum could obtain certain statements of case and certain witness statements, expert reports and written submissions, and that the matter should be remitted to the High Court to decide whether there were any other documents in relation to which confidentiality had been lost as they had been read out in court, or there were any other specific documents that should be disclosed in order to satisfy the principle of open justice. However, the Court of Appeal's finding was that there was no inherent jurisdiction to permit non-parties to obtain trial bundles, or documents referred to in written submissions, witness statements or expert reports or in open court, simply because they were referred to during a hearing.
Both parties appealed, with Cape essentially arguing the order was too broad and the Forum that it was too narrow.
Supreme Court judgment
Lady Hale gave the leading judgment of the Supreme Court, with which all of the other judges agreed.
Lady Hale held that there were three issues:
- What is the scope of CPR 5.4C(2)?
- Is access to court documents governed solely by the CPR or is there an inherent power to allow access?
- If there is such a power, how far does it extend and how should it be exercised?
The key issue here was what comprised the "records of the court". Lady Hale held this referred to documents and records that the court holds for its own purposes, not every single document generated in connection with a case and filed, lodged or kept at court. Current practice as to what is kept, it was held, could not determine the scope of the court's power to order access to case materials, as the principle of open justice is completely distinct from the practical requirements of running a justice system.
Lady Hale held that the constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. Therefore, unless inconsistent with statute or rules of court, all courts and tribunals have an inherent jurisdiction to determine what the principle requires in terms of access to documents or other information. The purpose of the open justice principle includes enabling public scrutiny of the way in which courts decide cases, and to enable the public to understand how the justice system works and why decisions are taken. For the latter purpose it is necessary to understand the issues and the evidence. Whilst, in the past, general practice was to read out all the argument and evidence in court, modern practice is to reduce much of the argument and evidence to writing. Therefore, it is difficult, especially in complicated civil cases, to know what is going on without the written material.
Lady Hale stated that it follows from the decision in Guardian News and Media Ltd v City of Westminster Magistrates' Court  EWCA Civ 420 that the public should be allowed access not only to written submissions and arguments but also to documents placed before the court and referred to during the hearing, and that this should not be limited to those which the judge has been asked to read or has said he or she has read.
However, it was held that the third party applicant has no right to be granted access. When an application is made, the courts must carry out a balancing act between the principle of open justice and the risk of harm that disclosure may cause to the maintenance of an effective judicial process or legitimate interests of others. Reasons for denying access may include: national security, protection of children or mentally disabled adults, protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality. Although in civil cases a party may be compelled to disclose documents that remain confidential until deployed in proceedings, even then there may be good reasons to preserve their confidentiality, for example in a patent case.
It was also held that the practicalities and proportionality of granting the request must be considered:
- the non-party must pay the reasonable costs of granting access; and
- where the material has not been retained, the burdens on the parties in identifying and retrieving it may be out of proportion to the benefits to the open justice principle, and the burden on the trial judge in deciding on disclosure may become harder or more time consuming. This is likely to be a stronger countervailing principle where proceedings have come to an end.
Application to the facts
Applying the above principles to the facts of this case, Lady Hale found that the Court of Appeal had jurisdiction to make the order that it did, and had jurisdiction to make a wider order if it were right to do so. The basis of the wider order was the inherent jurisdiction (not the CPR) and the principles governing the exercise of that jurisdiction were those laid out in Guardian News and Media, Kennedy v Charity Commission  UKSC 20, A v British Broadcasting Corporation  UKSC 25 and this case.
Lady Hale noted that there had been no argument on the extent of the continuing obligation of the parties to cooperate with the court on furthering the open justice principle once proceedings are over. That and other practical questions should be resolved via a consultative process by the bodies responsible for framing the court rules. We may therefore see amendments to the CPR in this regard in the future.
The Court of Appeal judgment had meant that relatively narrow access to documents was permitted to third parties. The Supreme Court judgment has made clear the broad inherent jurisdiction that the courts have to allow non-parties to access documents, and that it is not necessary for documents to have been read or deemed to have been read in court. This may result in more applications by non-parties, who may be interested in such information for a number of reasons: such as where the intention is to bring a claim against the same defendant, where the information will be relevant to a connected claim such as a professional negligence action arising from the same circumstances, or perhaps by the media for the purposes of a story.
It is likely that the potential for third parties to access documents will be of concern to some litigants in sensitive proceedings. There are a number of ways that parties concerned about access to documents may pre-empt and try to prevent access to certain documents. For example, CPR 5.4(c)(4) allows an application for an order to prevent non-party access to statements of case. Under CPR 31.22(2), the court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public. This development may also make avoiding litigation more attractive in some cases.
What may a non-partly potentially obtain?
- statements of case (claim form, particulars of claim, defence, reply to defence, counterclaim, further information given in relation to them, although not documents filed with, attached or intended to be served with them) (CPR 5.4C(1));
- judgment or order given in public (CPR 5.4C(1));
- transcript of proceedings heard in public subject to a fee (in private a non-party may apply for an order) (CPR 39.9); and
- witness statements which stand as evidence in chief unless the court directs otherwise, during the trial (CPR 32.13(1)).
Under the courts' inherent jurisdiction, subject to passing the balancing act test, following Cape v Dring (and authorities referred to in that case):
- copies of witness statements after the trial and documents without which it is not possible to understand the statement;
- expert reports treated as evidence in chief and documents without which it is not possible to understand the statement or report;
- written submissions and skeleton arguments, plus other documents submitted to the court to assist understanding such as chronologies, dramatis personae, and reading lists, providing there was an effective public hearing at which they were deployed;
- documents placed before the court and referred to during the hearing.