On 29 July 2019, the Supreme Court provided clarification as to the scope of the Court’s discretion to grant access to Court documents to a non-party.
The judgment in Cape Intermediate Holdings Ltd v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK)  UKSC 38 can be found here.
The Supreme Court found that the Court must be guided by the principle that justice is to be done in the open, overruling the Court of Appeal’s rejection of an inherent jurisdiction to permit disclosure to non-parties of a wide range of documentation (such as trial bundles) that might be produced to the Court as a case is advanced. The person seeking access must nevertheless be able to justify why such documentation is sought and how it advances the principle of open justice. Further, the Court will carry out a balancing exercise; assessing the potential value of the information in advancing open justice against the risk of harm in providing it, including the efficacy of the judicial process and the legitimate interests of others. The practicalities and proportionality of granting the request would also be taken into account.
The case arose out of an application brought on behalf of the Asbestos Victims Support Groups Forum UK ('Forum'), to access trial bundles and other documentation used at the trial of claims against Cape Distribution Limited ('Cape'). The applicant represented an association supporting people suffering from asbestos-related diseases and inter alia hoped that documentation used or disclosed at trial would contain information as to what the asbestos industry knew of the dangers of asbestos. That knowledge would in turn promote academic discussion as to the science and history of asbestos, asbestolux exposure and production, and assist court claims and the provision of advice to asbestos disease sufferers.
The application was made pursuant to CPR 5.4C. CPR 5.4C(2) provides that a non-party to litigation may, with the permission of the Court, obtain from the Court records “any other document” filed by a party (i.e. other than a statement of case or judgment or order made in public, which are generally available without the need for permission). In the alternative, the Forum relied upon the Court’s inherent jurisdiction. The Defendant resisted the application, including on the basis that the Court lacked jurisdiction because the case had settled.
At first instance, Master McCloud in the High Court took a broad view of the documents that should be made available to a non-party where a case settled after trial, although he drew a distinction between documents read or treated as read by the judge and documents falling outside of that category. In the former case the applicant would benefit from the default position of production provided that the applicant had a legitimate interest in the documents, which overrode any harm to the legitimate interests of others. In the latter category, the applicant would be subject to a more onerous obligation to demonstrate that access is necessary in the interests of justice. A broad view was taken by the Master as to the critical question of which documents would be taken as being read by the judge. The first instance decision emphasised the importance of individual cases in forming the basis of advice to others. Settling a case after trial cannot and should not permit a party to exclude sensitive material from the public eye.
On appeal by Cape, the Court of Appeal overturned the Master’s order. It limited the scope of the “records of the Court” under CPR 5.4C(2), which it found would not normally include trial bundles, witness statements, skeleton arguments or written submissions. It nevertheless found that the Court had an inherent jurisdiction to permit a non-party to obtain certain other documents, including witness statements or expert reports which had stood as evidence in chief and would have been available for inspection during trial as well as others such as skeletons or written submissions made at a hearing held in public. It ordered that the application for further disclosure be listed before the trial judge to determine whether any other documents had lost confidentiality by virtue of being read out in court or by the Judge, or inspection was necessary to meet the principle of open justice. The Court of Appeal roundly rejected the existence of any inherent jurisdiction to permit non-party access to trial bundles generally or to documents which had only been referred to in other documents. Cape appealed to the Supreme Court with the Forum cross appealing and the Media Lawyers Association intervening.
The Supreme Court’s Decision – open justice
The Supreme Court has ruled unanimously that the Court should be free to grant access to a wide range of documentation to non-party applicants, including not only parties’ submissions and arguments but also documents placed before the Court and referred to during the hearing, whether or not the judge had read the documents. Any limitation based on the latter could mean that “the less conscientious the judge, the less transparent is his or her decision” (para. 44).
The basis for such access rests not on CPR 5.4C but on the inherent jurisdiction of the Court and the principle of open justice. In drawing the distinction, the Court focused on the fact that the outcome of an application under CPR 5.4C is subject to the records held by the Court at a particular time and for particular purposes, which may themselves be subject to how the justice system is run at any one time. Those reasons are not the same as the principles which should be applied in determining whether access should be given (see para. 24 of Lady Hale’s lead judgment).
The Supreme Court held that it was not correct to focus on the limits of the Court’s jurisdiction; indeed, as Lady Hale noted at para. 34: “...case after case has recognised that the guiding principle is the need for justice to be done in the open and that courts at all levels have an inherent jurisdiction to allow access in accordance with that principle.” The principal purposes of the open justice principle are:
- To enable public scrutiny of the way in which courts decide cases.
- To enable the public to understand how the justice system works and why decisions are taken.
Once the pre-eminence of the principle is recognised, the question is then how it should be exercised. As noted above, the existence of the power on the part of the Court for access to be granted does not automatically confer on an applicant the right to receive the documentation sought. An applicant must explain their basis for seeking access, including how granting access would advance the open justice principle. It was then for the Court to carry out a fact-specific balancing exercise, taking account of the harm disclosure could cause to the maintenance of an effective judicial process or the legitimate interests of others in, for example, confidentiality being preserved. The practicalities and proportionality of granting the request would also be relevant with the non-party seeking access being expected to meet the reasonable costs of access being granted (see para.47). Notably, where trial bundles had been annotated, such copies would only be provided with the consent of the person holding them. A clean copy of a bundle, if still available, may be the “most practicable” way of allowing a non-party access.
Also of interest are the closing remarks (postscript, para. 51) in which the Supreme Court urged bodies responsible for framing court rules to ‘give consideration to the questions of principle and practice’ of the case and to commence a wider consultation on how to apply rules in future. They commented in particular on the fact that the issues in this particular case arose in unusual circumstances after the end of trial but where clean copies were available. They had not heard any argument on the extent of any continuing obligation of the parties to cooperate with the court in furthering the principle of open justice once proceedings had been concluded and that, and other practical issues, should more suitably be resolved through consultation.