The High Court has held that it has no inherent jurisdiction to order non-party access to witness statement exhibits, and documents put to witnesses in cross-examination, where these are not on the court file: Nestec SA v Dualit Limited  EWHC 2737 (Pat). Since such documents are not normally held on the court file, non-parties generally will not be able to obtain copies of such documents unless the parties to the action consent.
The judge commented: “Third parties are given access to documents like skeletons, witness statements and experts reports because the idea is that the trial is in public and a person could sit in court and hear what is said — they could write it down and they could quote and reproduce it. The modern paper-based approach to proceedings should not provide a fetter to that open justice. But copies of other documents raise different considerations. A third party sitting in court does not ordinarily have unfettered access to such materials….”
Following judgment in patent proceedings, a non-party applied for access to certain documents arising from the proceedings, namely witness statement exhibits and documents put to witnesses during cross-examination at trial (the “Documents”). The applicant wished to use the Documents in imminent proceedings before the European Patent Office (EPO) relating to the same patent.
The application was made on two bases:
- under CPR 5.4C which allows non-parties to have access to copies of certain documents on the court file; or alternatively
- under the court’s inherent jurisdiction in support of the principle of open justice.
The judge (Birss J) had ordered that the non-party could obtain copies of two experts’ reports and the defendant’s opening and closing skeleton arguments. The current judgment was concerned only with the Documents.
The court refused the non-party’s application. Although the non-party had a legitimate interest in having access to and use of the Documents in the EPO, the judge concluded that the court had no power to make such an order.
CPR 5.4C was of no assistance because, in the time available, the court administration had not been able to locate the file or any other records relating to the case. Accordingly, there could be no order providing copies from the court file. In any event, as the judge commented, these were not documents that would normally be expected to be on the court file.
Although open justice was a very important principle, the judge was not satisfied that it gave the court inherent power to make the order sought. There was no rule which provided such a power and, the judge said, the rules which did exist left no room for such a power under the inherent jurisdiction.
The judge referred to GIO Personal Investment Services Ltd  1 WLR 984 in which the Court of Appeal drew a clear distinction between witness statements and skeleton arguments on the one hand and exhibits on the other. He quoted the following passage from the judgment of Potter LJ:
“So far as concerns documents which form part of the evidence or court bundles, there has historically been no right, and there is currently no provision, which enables the member of the public present in court to see, examine or copy a document simply on the basis that it has been referred to in court or read by the judge. If and in so far as it may be read out … a member of the press or public may quote what is read out, but the right of access to it for purposes of further use or information depends upon that person’s ability to obtain a copy of the document from one of the parties or by other lawful means. There is no provision by which the court may, regardless of the wishes of the parties to the litigation, make such a document available to a member of the public. Nor, so far as such documents are concerned, do I consider that any recent development in court procedures justifies the court contemplating such an exercise under its inherent jurisdiction”.
Although the GIO case was decided before the CPR came into force, that did not make it irrelevant. The judge noted that the CPR contain rules dealing with similar issues, for example CPR 32.13 which provides that witness statements which stand as evidence in chief are open to inspection during the course of the trial. This rule applies only to witness statements, not exhibits. The judge said this was a key problem for the application. He could only infer that the draftsman of the rules chose not to overturn the effect of the GIO case and permit access to exhibits and other evidence at trial.
The judge also referred to British Arab Commercial Bank v Algosaibi Trading Services Limited  EWHC 1817 (Comm) in which the court held that exhibits were not covered by CPR 32.13 (see post).