The Commercial Court recently granted a third party access to witness statements when the relevant witnesses had not given evidence. Further, as the trial had ended, the witnesses in question would never be called to give evidence.

British Arab Commercial Bank v. Algosaibi Trading1

The trial of this action ended early with the defendants admitting liability. Standard Chartered Bank (SCB) subsequently applied for access to and copies of witness statements. As the trial had ended early, no witness had given oral evidence.

Mr Justice Flaux, who had also been the trial judge, heard the application. By the time the application was heard only Crédit Agricole Corporate and Investment Bank (CACIB) maintained its objection.

Rule 32.13

Rule 32.13 of the Civil Procedure Rules provides that a witness statement:

“…which stands as evidence in chief is open to inspection during the course of the trial unless the court otherwise directs.”

Counsel for CACIB argued that a witness had to give oral evidence before this rule was triggered. He also argued there was no other basis on which a third party could obtain witness statements. Flaux J rejected his argument on two grounds.

First, Flaux J noted that during the opening days of the main trial he had informally raised SCB’s request with the parties. In revisiting these exchanges, he concluded that the parties had consented to the provision of the witness statements (as they expected them to become available to SCB under rule 32.13 in any event).

Second, while he accepted that the argument raised by CACIB might have some merit, he did not accept it would necessarily have changed the position had the parties raised it when he first asked them for consent. If the parties had raised this technical objection at that stage, Flaux J determined that:

“…the court would have inherent jurisdiction to say, it is appropriate that Standard Chartered Bank should have the witness statements now before the witnesses go into the box so they do not have to be produced on a piecemeal basis.”

Flaux J decided the position on the exhibits was different. The exhibits were not subject to the informal consent. Nor were they covered by rule 32.13. He therefore refused SCB’s application for access to and copies of the exhibits. As a matter of practicality, it may have been difficult for SCB to make much use of the witness statements without their exhibits.

Lessons Learned

Flaux J’s understanding that the parties, including CACIB, had already consented clearly influenced his view. However, the second ground on which Flaux J made his decision is of potentially wider application. If correct, witness statements may become available to third parties from the first day of trial.

This sits uneasily with rule 32.5(2). This rule, which Flaux J does not refer to in the judgment, states that:

“When a witness is called to give oral evidence […] his witness statement shall stand as his evidence in chief…”

This suggests that a witness statement does not stand as evidence in chief until a witness is called. On that basis, calling a witness would trigger a right to their witness statement under rule 32.13.

On Flaux J’s view there is a risk that all witness statements will be open to third parties from the first day of trial. Early settlement may not prevent witness statements becoming available to third parties (as CACIB discovered). This may be significant in circumstances where parties are considering settlement precisely because of concerns about what may enter the public domain during trial.

The impact is not just limited to instances of early settlement. Statements of witnesses who are not called for tactical reasons may still be available to third parties.

Access to Documents Filed at Court

This decision also serves as a reminder that third parties can access certain documents filed at court. In addition to the specific provisions, there is also a general provision2 allowing third parties access to documents on the court file provided they first obtain the court’s permission. The court will usually grant access in these circumstances where the document was part of the decision-making process at a public hearing. In other circumstances, or where the court has already restricted access, the question is whether access is in the interests of justice3.

Other documents are available to third parties as of right without the need to obtain permission of the court. Third parties to High Court proceedings are entitled to access to certain documents, including the following:

  • Copies of statements of case filed after 2 October 2006. This entitlement does not extend to documents filed with, or attached to, statements of case although the status of schedules prepared at the same time as a statement of case is not clear.
  • Judgments and orders made in public.

A party, or all parties by consent, can make an application to restrict access to statements of case under rule 5.4. Such applications will typically be made on the basis that a document contains confidential or commercially sensitive information. Even if the court has made an order restricting access to statements of case on the court file, a third party can still make an application for access.

It follows that parties should: (i) think carefully about what, if any, sensitive information should be included in documents filed with the court; and (ii) consider whether an application to restrict access should be made at an early stage.