Third party access to court documents and open justice

An important ruling of the Supreme Court reflects the importance of facilitating public scrutiny of the way the courts reach their decisions. In essence, as Lady Hale commented, the case was about the extent and operation of the principle of open justice.

The ruling has made clear that third parties who are not party to court proceedings should be allowed access to court documents as the default position, according to the principle of open justice.

This means the media, campaigners and family members could now expect to be given access to such document on request. However, as with all rules this is not absolute or without exception. The court said this is subject to the applicant showing good reason for wanting access; no competing principles outweigh the reasons given; and it will not be impracticable or disproportionate to grant access.

At issue for the court was the scope of rule 5.4C of the Civil Procedure Rules (CPR), and whether the court has an inherent power to order access to documents for non-parties outside of rule 5.4C.

Under rule 5.4C, a person who is not a party to proceedings may obtain from the court records copies of a statement of case and judgment or orders made in public. And if the court gives permission, they can “obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person”.

What’s the background?
In an unusual case, Cape Intermediate Holdings v Dring [2019] UKSC 38, the appellant company (Cape) was involved in the manufacture and supply of asbestos. Compensation claims had been made against it by the employer’s insurance company but these were settled just before judgment was given after the trial. Voluminous documentation had been produced for that trial.

The ruling followed an application by the Asbestos Victims Support Groups Forum UK for access to all those documents including trial transcripts. The forum was not itself a party to the original proceedings.

At first instance, the Master granted the order of disclosure but the Court of Appeal allowed Cape’s appeal to the extent that limited disclosure of documents only was permitted to records of the court (ie. statements of case held by the court and witness statements, expert reports and written submissions).

These limits did not go far enough for Cape, which then appealed to the Supreme Court – and the forum cross-appealed.

Cape argued that disclosure should have been limited to the statements of case held on the court file. It also said the scope of the court’s inherent jurisdiction was very limited and could only extend to skeleton arguments or written submissions relied on in court.

It also argued that the forum had no legitimate interest based on the public interest in open justice in the content of the documents it was seeking.

For its part, the forum argued that the appeal judges had been wrong in the way it had limited the scope of rule 5.4C.

What did the court decide?
In a unanimous ruling of the Supreme Court, Lady Hale handed down the judgment and commented that the constitutional principle of open justice applies to all courts and tribunals at all levels exercising the judicial power of the state.

Therefore, unless it is inconsistent with statute or the rules of court, they all have “an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question”.

However, although the court has this power to allow access, the applicant does not have the right to be granted it. The applicant must explain why access is sought, and how granting access will advance the open justice principle. The media, for example, are better placed than others to demonstrate a good reason for seeking access - though Lady Hale concedes that others may also show a legitimate interest.

The most obvious reasons for refusing access are national security, protecting the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality. On a practical note, the applicant will be expected to pay the reasonable costs of granting such access.

In this case, the Court concluded that Cape chose to attack the order made by the Court of Appeal on a narrow view of the court’s jurisdiction and not on its merits. It had not set up any counter-vailing rights of its own so there was no realistic possibility of the judge making a more limited order than the appeal court had done.

Lady Hale said the basis for the order was not rule 5.4C but the principle of open justice and the orders already made for access would stand. A further part of the appeal court’s order was replaced by an order for the application to be listed for a determination as to whether Cape should be required to provide a copy of any other document placed before the judge and referred to in the course of the trial to the respondent (at its expense) in accordance with the above principles.

What does this mean?
While the ruling is important for the principles of open justice and public scrutiny, there are potential implications for privacy and confidentiality. In some cases at least, this may not be a bad thing if those implications encourages the parties to a dispute to resolve matters before it becomes litigious.

Otherwise, litigators need to ensure their clients are aware of the risks that information could be accessed by third parties in certain situations.

“Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse” (Toulson LJ in Guardian News and Media [2012] EWCA Civ 420).



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