The first instance decision in this case was reported in Weekly Update 45/17. The applicant is a non‐ profit unincorporated association representing asbestos victims' support groups in the UK and it sought access to various documents produced in a case between a parent company and an employee of its subsidiary who contracted asbestosis.
CPR r5.4C provides that non‐parties can obtain statements of case ﴾which includes the claim form, particulars of claim, defence and reply ‐ but not documents filed with them﴿ but the court's permission is required to obtain "from the records of the court a copy of any other document filed by a party…" At first instance, it was held that the applicant was entitled ﴾subject to the court's permission﴿ to all documents filed at court, including trial bundles and skeleton arguments. The Court of Appeal has now allowed the appeal from that decision and held as follows:
﴾1﴿ The "records of the court" are documents kept by the court office as a record of the proceedings, principally "communications between the court and a party or other person" so eg the list of documents but not the disclosed documents themselves. Similarly "The receipt document for the trial bundles may be a record of the court, but not the trial bundles themselves".
The following documents are also not "records of the court" ﴾and so cannot be obtained by non‐ parties under CPR r5.4C﴿: the trial witness statements, the trial expert reports, the trial skeleton arguments or opening or closing notes or submissions, and the trial transcripts.
﴾2﴿ However, the court has an inherent jurisdiction to allow non‐parties to obtain copies of skeleton arguments/written submissions used in lieu of oral submissions ﴾see GIO v Liverpool & London Steamship P&I ﴿ as well as witness statements of witnesses ﴾including experts﴿ whose evidence stands as evidence in chief and would have been available for inspection during the course of the trial ﴾see CPR r32.13﴿. There is no inherent jurisdiction, though, to allow non‐parties to obtain access to trial bundles and trial documents even if they have been referred to in skeleton arguments/written submissions, witness statements, expert reports or in open court.
﴾3﴿ As to the exercise of the court's discretion, Moore‐Bick LJ in Dian v Davis Frankel & Mead  held that anyone with a legitimate interest should generally be given permission where documents were read by the court as part of the decision‐making process ﴾but not where documents have not been judicially considered at all﴿. In this case, it was held that the same principle applies even if a case settles before judgment ﴾provided that there has been an "effective hearing"﴿, because the principle of open justice is engaged.
Where the principle of open justice is engaged and the applicant has a legitimate interest in inspecting the document﴾s﴿, permission is likely to be given.
In this case, the respondent argued that the applicant did not intend to use the documents which it sought for its own research, but instead intended to publish them in the hope that someone else might make use of them, and so it did not have a legitimate interest. That argument was rejected: "As the authorities make clear, an entirely private or commercial interest in a document can qualify as a legitimate interest". Here, the applicant had a legitimate interest in helping asbestos victims and promoting asbestos knowledge and safety