The Court of Appeal has overturned a High Court order granting a non-party access to an unprecedented range of documents filed in court proceedings. The decision helpfully clarifies the courts’ powers in relation to public access to court documents.
In the interests of open justice, a member of the public who is not a party to litigation but who is interested in the issues or outcome (perhaps because they have a potential claim of their own, or they represent a pressure group, are a business competitor of one of the parties, or even a journalist) may obtain from the court records copies of the following key documents:
Statements of case such as the Claim Form, Particulars of Claim, Defence and Reply but not any documents exhibited to them, e.g. an invoice or contract; and
- Court judgments and orders.
A non-party may also, if the court gives permission, obtain from the court a copy of any other document. Before Cape (see below) this rule was interpreted narrowly.
Cape Intermediate Holdings Ltd v Dring (2018)
An application was made by Mr Dring, on behalf of a non-party asbestos victims’ support group, for permission to obtain copies of a huge quantity of documents relating to an asbestos-related damages claim which settled after trial but before judgment.
Permission was granted by the High Court in respect of a wide range of documents including the witness statements and documents exhibited to them, experts’ reports, trial transcripts, disclosed documents relied on by the parties at trial contained in the paper bundles, written submissions/skeleton arguments and statements of case.
Cape appealed and the appeal was heard by the Court of Appeal in view of the importance of the issues raised.
The Court of Appeal set aside the High Court’s order on the basis that it was of unprecedented scope and went far beyond the relatively narrow confines of the rule. It also issued guidance on how the rule should operate which is summarised below.
The right to public scrutiny arises if there has been a trial or other public hearing.
The courts do not have the power to allow non-parties to have copies of the trial bundles generally, or documents merely referred to in written submissions/skeleton arguments, witness statements, experts’ reports, etc. but may permit copies of:
Witness statements and experts’ reports which amounted to the evidence in chief of those witnesses during the trial or other public hearing;
Documents, including documents exhibited to witness statements, which have lost their confidentiality because they were read, or are treated as having been read, in open court i.e. because they were read out in open court, the judge was specifically invited to read them (whether in open court or outside court), or which it was clear or stated that the judge had read them;
- Written submissions/skeleton arguments read by the court at the trial or other public hearing; and
- Any specific documents which it is necessary for a non-party to have access to in order to meet the principle of open justice.
When the courts are considering whether and how to exercise their discretion, they should balance the non-party’s reasons for seeking copies of the documents against the litigating party’s private interest in preserving their confidentiality.
The courts are likely to lean in favour of granting permission if the documents were read in open court (or are treated as having been read) and the applicant has a legitimate interest in obtaining copies of them. Where the documents were not read in open court, the applicant must show strong grounds that access is necessary in the interests of justice.
‘Legitimate interest’ can include academic interest, use by a pressure group, use in some journalistic form and any number of other uses which are ulterior but legitimate. In Cape, Mr Dring’s interest was of a public nature but even “an entirely private or commercial interest” in a document can qualify as a legitimate interest. Often it will be an interest in related litigation.
The decision is welcome news for litigants as it restores the more limited powers of the courts to grant non-parties access to documents filed at court. However, it is now clear that the principle of open justice is engaged once there has been a trial or other public hearing which means that litigants cannot prevent documents from becoming publicly available by settling a case after trial but before judgment. The evidence relied upon at trial should be planned with public access in mind.
The Court of Appeal’s guidance is also useful for non-parties. Obtaining documents from the court is one of several ways that non-parties can gain information which is not in the public domain which may help them to advance potential claims of their own or assist them in other ways. The Court of Appeal’s confirmation that an entirely private or commercial interest may be sufficient to obtain access to documents, is welcome.
DISPUTE RESOLUTION >>