A recent court order caused alarm for one corporate litigant, Cape Intermediate Holdings (CIH), which was ordered to hand over a vast number of documents to a pressure group, the Asbestos Victims Support Group (AVSG). The documents had been used in mesothelioma litigation which CIH had settled previously and to which the AVSG had not been a party. On appeal, the Court of Appeal significantly reduced the pool of documents to which the AVSG was entitled. Litigation is generally public, which means that non-parties (including potential future claimants and journalists) are able to access many of the court documents. The Court of Appeal’s judgment provides useful guidance about what non-parties are, and are not, able to see: Cape Intermediate Holdings Ltd v Mr Graham Dring (for and on behalf of the Asbestos Victims Support Group) [2018] EWCA Civ 1975, 31 July 2018

AVSG had not been a party to the original proceedings but had made a without notice application for access to all documents used at or disclosed for the trial. At first instance, the court allowed AVSG to obtain copies of the following documents from the records of the court:

(i) written submissions and skeleton arguments;

(ii) transcripts;

(iii) trial bundles;

(iv) statements of case (including requests for further information and answers if contained in the trial bundles);

(v) witness statements including exhibits; and

(vi) expert reports.

Non-party access – a reminder of the rules

CPR 5.4C provides that non-parties to proceedings may obtain copies of the following documents from the court:

− 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;

− a judgment or order given or made in public (whether made at a hearing or without a hearing); and

− 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.

Non-parties can see ‘records of the court’

The key issue before the Court of Appeal was the definition of “records of the court”. The court held that these were “documents kept by the court office as a record of the proceedings, many of which will be of a formal nature”. Documents likely to fall within this definition include:

(i) a statement of case and any documents filed with or attached to a statement of case;

(ii) an application notice; and

(iii) any written evidence filed in relation to an application notice.

Whilst this list was not exhaustive, only documents analogous in nature to those in the list would fall within the definition of “records of the court”. Examples include the list of documents (but not the disclosed documents themselves) and witness statements and exhibits filed in relation to an application notice.

Documents which are not ‘records of the court’

Crucially, the court said that the following would not generally be considered “records of the court”:

(i) witness statements and expert reports exchanged in relation to trial;

(ii) trial bundles;

(iii) trial skeleton arguments or opening or closing submissions; and

(iv) trial transcripts.

Trial documents

Aside from Rule 5.4C the court has an inherent jurisdiction to allow a non-party access to trial documents. The Court of Appeal stated however that non-parties cannot access documents purely because they have been referred to in a skeleton argument, witness statement, expert’s report or in court.1 The court’s inherent jurisdiction allows non-parties inspection of the following trial documents:

(i) witness statements (including of experts), where they stand as evidence in chief and would have been available for inspection during trial;

(ii) documents in relation to which confidentiality has been lost due to the fact that they have been read in open court either by advocates or the judge, or the judge has been specifically invited to read them, or which it is clear that the judge has read;

(iii) skeleton arguments or submissions read by the court and which have been deployed at a public hearing; and

(iv) specific documents which it is necessary for a non-party to inspect in order to meet the principle of open justice.

Comment

It is not uncommon for a company’s management to be concerned about who has access to litigation documents – particularly documents that have been disclosed to the other side, witness statements and expert reports. The concern may be about other future litigants, journalists or a combination of both. The concern may be focused on individual and/or corporate exposure.

This Court of Appeal ruling usefully clarifies what a non-party is entitled to see (and not entitled to see). It is not practical to manage litigation without producing or disclosing documents that may end up being accessed by a non-party. However, understanding the rules will ensure that non-parties are not provided access to documents which they are not entitled to see. It means that in the run up to trial, pre-preparation of press reports can avoid a company being caught off guard should damaging information come to light as a result of non-party access. Finally, it should be taken into account as part of any settlement strategy.