Non-party requests for trial documents filed in English High Court proceedings are the regular diet of English litigators advising US clients. A potential claimant (as we call the plaintiff) might want to take advantage of a judicial finding of fact to assert its own claim or to gain some corporate intelligence on a rival’s products, its business strategies or its executives’ employee restrictive covenants.

The standard starting point has been to consider the request against Rule 5.4C of the Civil Procedure Rules:

“…(1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of – (a) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it; (b) a judgment or order given or made in public (whether made at a hearing or without a hearing)… (2) A non-party may, if the court gives permission, 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.” (Emphases added).

For my US readers, a statement of case is one of the pleadings in English litigation. The Rule provides that those are freely obtainable. But for any other filed document, the Rule is clear: an application (motion) must be brought for a court order directing provision of the filed document.

Lady Hale JSC has just handed down the Supreme Court’s ruling in Cape Intermediate Holdings Ltd v Dring (For & On Behalf of Asbestos Victims Support Groups Forum UK) [2019] UKSC 38. It provides some much-needed guidance on when the court should be prepared to order production of “any other documents” in the litigation process.

The Background

Asbestos supplier Cape Intermediate Holdings Ltd (Cape) was defendant to contribution proceedings from employers’ insurers who had paid out on employee mesothelioma claims. Insurers pled a contribution claim that Cape had been negligent in producing the asbestos boards which had caused the employees’ mesothelioma. Cape settled insurers’ contribution proceedings after trial but before judgment.

Asbestos Victims Support Groups Forum UK (the Forum), then applied under CPR Rule 5.4C for production of all the documents used at or disclosed for the Cape trial. That included all the trial bundles and the transcripts. The Forum wanted the evidence on the UK asbestos industry’s knowledge of asbestos risk, its research and its communications with the UK Health and Safety Executive in producing asbestos safety standards. The Master (procedural judge) agreed to order all the material which the Forum sought, whether under CPR Rule 5.4C or at common law. Cape appealed.

The Court of Appeal restricted both the ambit of “all other documents” in Rule 5.4C (2) and the ambit of the court’s underlying inherent power. Its ruling was not restrictive enough for Cape, yet too restrictive for the Forum.

The Judgment

On the appeal (and cross-appeal), Lady Hale assessed comprehensively the earlier case authorities in the context of the courts’ need to balance the democratic right of open justice against the litigants’ rights to confidentiality. She confirmed that the court’s inherent jurisdiction runs wide, beyond Rule 5.4C:

“…unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court… The extent of any access permitted by the court’s rules is not determinative (save to the extent that they contain a valid prohibition)”.

Yet by no means is access for a non-party to others’ court documents an automatic entitlement:

“It is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle”.

Lady Hale then set out the scope of the fact-specific balancing exercise, which each application will require. On the one side of the scales will be the open justice principle and the value of the information in advancing it. On the other side is the risk of harm to the legitimate interests of the litigants at the trial. She listed examples of reasons that will supersede the open justice principle:

“The most obvious ones are national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality”.

So whilst there is a wide discretion for granting access to court documents, the courts will be very circumspect before exercising it. Lady Hale warned that unless:

  1. good reason can be shown why the access would advance the principle of open justice,
  2. that there are none of the listed reasons which trump the open justice principle, and that
  3. granting access is not impracticable nor disproportionate,

then the English courts will not grant access to “any other documents”.

On a practical matter, Lady Hale very helpfully confirmed that no court will order disclosure of a trial bundle containing lawyers’ comments without the consent of that lawyer. That is a matter of immense relief to those solicitors and counsel, dare I say “of a certain generation”, whose practice is to insert written comments on their trial bundle copies of their opponents’ statements (affidavits) and skeleton arguments (briefs), using terms they might not wish their grandmothers to see.