The Supreme Court has confirmed the principles governing whether a non-party can obtain documents from the court file – and to what documents a non-party is entitled.1

The applicant was a body representing asbestos victims, and sought copies of extensive documents (including trial bundles and trial transcripts) used and disclosed in court proceedings in which Cape (a former asbestos manufacturer) defended itself against negligence claims. The applicant believed these documents “would contain valuable information about such things as the knowledge of the asbestos industry of the dangers of asbestos, the research which the industry and industry-related bodies had carried out, and the influence which they had had on the Factory Inspectorate and the Health and Safety Executive in setting standards.” The applicant also considered that “the documents might assist both claimants and defendants and also the court in understanding the issues in asbestos-related disease claims. No particular case was identified but it was said that they would assist in current cases.”

The applicant therefore gave a ‘public interest’ rationale, far wider than a strict ‘open justice’ interest in seeing how the underlying case had been conducted. The applicant’s reasons seem reminiscent of the sorts of questions formerly asked of the tobacco industry. The fact that the applicant in fact obtained (relatively) broad access to the relevant documents should sound a note of warning among other industries where public-interest pressure groups might seek to make similar applications (fossil fuels, arms, sugar etc).

The Supreme Court confirmed once and for all the basic test for access by a non-party.

  1. The Civil Procedure Rules (and analogous court rules) set out the documents that a non-party may obtain from the court records but these are the minimum of what the court should provide.
  2. Each court and tribunal exercising state power has an inherent jurisdiction to provide access to open justice, and to determine for itself what that requires in given circumstances, in terms of access to documents placed before the court.
  3. The applicant has no right to be granted access (save to the extent that the rules grant it) so the applicant must explain why it needs to see those documents.
  4. Then the court must apply a balancing test between, on the one hand, the potential value which the material has for advancing open justice, and on the other hand the legitimate interests of others. It will also take into account the practicalities and proportionality of granting access.

That formulation leaves a wide margin of discretion, and the Supreme Court gave additional guidance on how a court might apply the test in practice.

  • What is the principle of open justice? Baroness Hale pointed to at least two elements: first, to allow the public to hold the judiciary to account; second, to enable the public to understand how the justice system works and how decisions are taken.
  • Neither of those reasons aligns precisely with the applicant’s reasons in this case, and the judgment did not address this point. However, Baroness Hale left the door open to further developments, saying that in addition to these elements of ‘open justice’, … there may well be others.”
  • The court recognised that procedure has changed to allow for more efficient conduct of cases, but that this increasingly renders proceedings unintelligible to a non-party. For instance, ‘in the olden days’ trials used oral evidence, oral arguments and oral judgments, and this was open for all in the court room to hear. Openings might now take the form of a skeleton argument / written submissions, and judges can read documents on a screen. But an increased use of written material today was no reason for less transparency. The court recognised quite how difficult it might be for a member of the public to follow proceedings without seeing these key documents.
  • However, it remained out of the question to let the public have a marked-up version of the trial bundle. A non-party should only be permitted to access ‘clean’ documents. In practice, it might be difficult to access a clean set of documents after trial had ended (though e-bundles – if retained – could solve that problem).
  • Ideally, a non-party should apply for documents before the end of proceedings, while the papers were still collated and the trial judge was in place and able to determine the application. However, we see that as a counsel of perfection. A non-party might only seek documents upon seeing a judgment and thinking it dubiously decided. This sort of public scrutiny of the judiciary is a key reason for the open justice principle.

On this basis, the Supreme Court upheld the Court of Appeal’s decision that the court should provide the applicant with:

(i) statements of case, including requests for further information and answers

(ii) witness statements, expert reports and written submissions

(iii) documents read out in open court, or which the judge was invited to read in court or outside court, or which it was clear or stated that the judge had read

(iv) skeleton arguments / written submissions (so long as deployed at a public hearing)

(v) ‘any specific documents which it was necessary for a non-party to inspect in order to meet the principle of open justice

The Supreme Court delegated to the trial judge the issue of what ‘specific documents’ were relevant to meet the principle of open justice, while suggesting that these were documents needed to understand what actually went on at trial, hence this may be a narrower category than it at first seems. The Supreme Court did not suggest delivering up all disclosed documents, and considered commercial confidentiality to be a legitimate interest which a judge might consider in conducting this balancing exercise. However, the judgment also noted that the court actually had a jurisdiction to make a wider order than the above if appropriate in a given circumstance.

Where does this leave us? Potentially with more non-parties seeking access to a wider scope of court documents, and quite possibly also with an expansion of the reasons on which non-parties can base such requests. However, we do not see this as opening the floodgates. There remain legitimate interests for which the courts should preserve confidentiality. We suspect the demarcation point is likely to be the commencement of an actual trial. Before that, the court is more likely to lean in favour of confidentiality, and thereafter in favour of open justice. This was the approach which the court recently took in Autonomy v Lynch. Litigants have a legitimate expectation of privacy and confidentiality, which the court overrides for the purposes of efficient litigation. In particular, a witness statement only becomes ‘evidence’ where it stands as evidence in chief at trial. And the court encourages parties to take a ‘cards on the table’ approach ahead of trial in order to facilitate settlement. But once a case is heard in public, open justice may override these considerations.

Any increased access to documents could prove a headache to litigants in the context, above all, of high profile proceedings with significant public interest. Given the increasingly cross-border nature of modern proceedings, litigants may also be subject to sub-poenas, disclosure orders and document requests in any number of different jurisdictions (this was at issue in Autonomy). What constitutes a public document, and into whose hands it can fall, may prove to be an increasingly vexed question – as might the question of collateral use of documents generated by litigation.