In a showstopper judgment, a unanimous Supreme Court has clarified the extent of the court’s discretion to allow non-parties access to documents in a civil claim. In Cape Intermediate Holdings Ltd v Dring , the Supreme Court sifted through the authorities to expound the powers of courts to order access not only under the Civil Procedure Rules, but also under the court’s inherent jurisdiction in accordance with the principle of open justice.
As star baker Lady Hale (delivering sole judgment) said, quoting Lord Hewart CJ, it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. It is because of this core principle of our justice system that courts sit in public. But whereas previously civil claims relied heavily on oral evidence, arguments and judgment which anyone present in court could hear, today, much written material is stirred into the mix – statements of case, disclosed documents, skeleton arguments and written submissions – leading to a written judgment. For non-parties, the proceedings may be difficult, or indeed impossible, to follow without access to these documents. Consequently, Cape concerned the extent and operation of the principle of open justice in terms of what access non-parties to litigation should be given to the written material, and how.
The claimant, Cape, is a company that was involved in the manufacture and supply of asbestos. In previous proceedings, it was defendant to claims brought by the insurers of employers who paid damages to employees contracting mesothelioma as a result of asbestos exposure. Those claims were heard at a six-week trial in the Queen’s Bench Division which generated voluminous documents stored in both hard copy and electronically. In any event, the litigation settled after the trial but before judgment was given.
Shortly after the settlement which disposed of those proceedings, Mr Dring made a without notice application, on behalf of the Asbestos Victims Support Groups Forum UK (the forum), for access to the trial bundles, transcripts and other documents. The forum argued that these documents would contain valuable information which might assist litigants and the courts in understanding the issues in asbestos disease claims. The application was made under CPR 5.4C (which governs the supply of documents to non-parties from court records), and in the alternative, on the basis of the court’s inherent jurisdiction to order access.
CPR 5.4C(1) provides that a non-party to proceedings may obtain from the court records a copy of a statement of case and a judgment or order made in public. CPR 5.4C(2) provides that in addition, if the court gives permission, a non-party may ‘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.’
It is the second part that has proved something of a technical challenge.
Master McCloud heard the application and considered that the forum had a legitimate interest in bringing it. She found that she had jurisdiction to order access to all the material sought, either under CPR 5.4C(2) or at common law. Accordingly, she ordered a liberal sprinkling of access to the documents used at or disclosed for the trial, including the hard-copy trial bundle, transcripts and written submissions. She did not order access to an electronic bundle which contained the entirety of the disclosed documents, including those disclosed but not referred to in court. She did however consider it Prue-dent to order that a copy of the electronic bundle be retained at court. It appeared that Mr Dring was on a (Swiss) roll.
Cape appealed and because of the importance of the issues raised, the appeal was heard by the Court of Appeal.
Agreeing that the Master had over-egged the pudding, the Court of Appeal allowed Cape’s appeal, holding that the ‘records of the court’ for the purposes of CPR 5.4C(2) are much more limited than the Master had held.
Furthermore, although the Court of Appeal agreed that the court has an inherent jurisdiction to allow access to documents, it considered the scope of that jurisdiction to be more limited. Citing GIO Personal Investments Services Ltd v Liverpool and London Steamship Protection and Indemnity Association Ltd , it held that there was no inherent jurisdiction to permit non-parties access to trial bundles or documents referred to in skeleton arguments or written submissions, witness statements, expert reports or in open court, simply because they had been referred to in the hearing. Thus, in a move guaranteed to whisk things up, the Court of Appeal ordered:
For Cape this took the biscuit, and it appealed to the Supreme Court. That got a rise from the forum, which in turn cross-appealed seeking an extra slice. The Media Lawyers Association then intervened in the bun-fight.
Giving judgment for the Supreme Court, Lady Hale did not sugar-coat matters. She succinctly distilled the issues down to the following:
Considering the wording of CPR 5.4C(2), Lady Hale observed that although it allows non-parties to obtain documents from ‘the records of the court’, there is no clear definition of the records of the court, or what they should contain. She surmised (para 24):
‘The purposes for which court records are kept are completely different from the purposes for which non-parties may properly be given access to court documents. The principle of open justice is completely distinct from the practical requirements of running a justice system. What is required for each may change over time, but the reasons why records are kept and the reasons why access may be granted are completely different from one another.’
Consequently, current practice as to keeping court records cannot determine the scope of the court’s power to order access to case documents.
She then folded in some other relevant rules (including CPR 39.2 – the general rule that court hearings should be in public; CPR 39.9 – the effect of which is that a non-party can obtain a transcript of everything said in court; and CPR 32.13 – which deals with the availability of witness statements for inspection) before beating in some case-law.
As set out above, the Court of Appeal had largely followed the recipe used in GIO, as relied on by Cape, while recognising that in certain respects, the law has developed since that case.
In particular, in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court , the Court of Appeal favoured an entirely different recipe. It held that where documents have been placed before a judge and referred to in the course of proceedings, the default position should be that access be permitted on the open justice principle. In circumstances where access is sought ‘for a proper journalistic purpose’, the case for allowing access ‘will be particularly strong’. It also held that in evaluating the possible grounds for opposing access, the court must carry out a fact-specific balancing exercise.
In Cape, the Supreme Court acknowledged the Court of Appeal’s ‘unenviable task’ of attempting to reconcile the ‘very different’ approaches taken in GIO and in Guardian (at para 34). Nonetheless, the principles laid down in Guardian were clearly endorsed by the majority of the Supreme Court in the subsequent case of Kennedy v Charity Commission  and by a unanimous Supreme Court in A v British Broadcasting Corporation . This last case concerned exceptions to the open justice principle and expressly adopted the test laid down in Kennedy, which was itself a direct citation from Guardian (para 85):
‘Whether a departure from the principle of open justice was justified in any particular case would depend on the facts of that case. As Lord Toulson JSC observed in [Kennedy], para 113, the court has to carry out a balancing exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the information in question in advancing that purpose and, conversely, any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others.’
Quoting this with approval, Lady Hale stated that there should therefore be no doubt about the principles to be applied; the question is how they are applied in a particular case (which will require the balancing exercise referred to above to be carried out).
Lady Hale’s judgment is unequivocal that the constitutional principle of open justice applies to all courts and tribunals exercising the judicial powers of the state, at all levels. This means they have an inherent jurisdiction to determine what that principle requires in a particular case in terms of access to documents.
The jurisdiction is not limited to allowing access to what the judge has read or been invited to read. It is fundamentally wrong to talk in terms of limits to the court’s jurisdiction (except to the extent that any relevant court rules contain a valid prohibition): the correct question is how that jurisdiction should be exercised in the particular case. The purpose of this principle is:
This they cannot do unless they have access to the written materials needed to be able to understand the case before them.
That said, non-parties do not have a right to access (unless such a right is granted in the relevant court rules). The person seeking access must explain their reasons and demonstrate how granting access will advance the principle of open justice. The court will then apply the Guardian test ie balancing the purpose of the open justice principle and the potential value of advancing the information sought against any risk of harm that its disclosure may cause. As Lady Hale noted, there could well be persuasive reasons for denying access such as protecting national security, protecting vulnerable parties, privacy interests, trade secrets or commercial confidentiality. Conversely, the media may be better placed to demonstrate a good reason for seeking access.
Lady Hale also emphasised the potential importance of considerations of practicality and proportionality. If an application for access is made after proceedings have concluded, the burden that would be placed on those who were involved in the claim to identify and retrieve such material may well be deemed to outweigh any benefit to the principle of open justice.
On the subject of trial bundles, she indicated that the court may in some cases order access to a clean copy of the trial bundle as the most practical way of providing access to the material in question. However (para 48):
‘There can be no question of ordering disclosure of a marked up bundle without the consent of the person holding it.’
As to the parties in Cape, Cape was incorrect in arguing that the Court of Appeal did not have jurisdiction to make the order it did. The Court of Appeal not only had jurisdiction to make that order, it could have made a wider order. But that would have been under its inherent jurisdiction, not under CPR 5.4C(2) as argued by the forum. Both parties have now, on the Supreme Court’s order, returned to the High Court to seek their fortune (cookies).
The (soggy) bottom line is now clear: under the court’s inherent jurisdiction and the principle of open justice, there is no limit to the court’s discretion to grant non-parties access to documents.
As Lady Hale said (para 34):
‘There can be no doubt at all that the court rules are not exhaustive of the circumstances in which non-parties may be given access to court documents.’
The rules are ‘a minimum’ and the starting point is that access should be granted, albeit that the onus is on the applicant to persuade the court that there is a good case for allowing access outside of the rules. The guiding principle is the need for justice to be done (and indeed be seen to be done) in the open, and all courts throughout the UK exercising the judicial powers of the state have an inherent jurisdiction to allow access in accordance with that principle, even though the court rules which are applicable to them may differ.
In deciding whether and how to exercise its jurisdiction, the court must get out its scales and carry out a balancing exercise, applying the principles explained, which will be fact-specific to each case.
Non-parties hoping to avail themselves of the court’s jurisdiction should be quick off the mark: the Supreme Court was clear that it is highly desirable that the application is made during the trial when the material is still readily available.
If this is not possible then the application should be made at the earliest opportunity.
In a postscript to the judgment, the Supreme Court urged the Civil Procedure Rule Committee (CPRC), and its equivalent in other parts of the UK, to consider the issues of principle and practice raised by Cape, specifically stated to include the extent of any continuing obligation on parties to co-operate with the court in furthering the open justice principle after proceedings have ended. It may therefore be that the CPRC soon turns its attention to the CPR provisions on access to documents, potentially utilising a consultative process as suggested by the Supreme Court. An amended CPR 5.4C codifying the court’s inherent jurisdiction under the open justice principle might be the icing on the cake…
This article was first published in the September / October 2019 edition of The Commercial Litigation Journal, and is reproduced with kind permission.