Accessing court documents
Generally speaking, documents filed in a case may only be seen by the parties in that case and used in that case. Anyone who is not a party will find out what happened when (or if) judgment is published, but they will not automatically have access to the documents that the parties and court referred to. If someone who is not a party to a case wants access to documents filed at court, whether the proceedings are ongoing or have finished, they will need to apply to the court for permission to access and use them. The Supreme Court has clarified what non-parties can obtain and how.
When may a non-party want to access court documents from another case?
Take the example of Cape Intermediate Holdings Ltd v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK). In the underlying proceedings Cape had been sued by various companies, which sought financial contribution from Cape towards settlements the companies had reached with employees who had used Cape’s asbestos products during their employment and subsequently contracted mesothelioma. The dispute between Cape and the companies settled after trial but before judgment. During the trial, Cape had relied on voluminous documentary material, including witness statements, expert reports, disclosed documents, and written submissions.
In the present proceedings, the Asbestos Victims Support Groups Forum UK (known as the Forum) sought the Court’s permission to view, and potentially use, Cape’s material from the previous trial. The Forum had not been a party to the dispute between Cape and the companies, but thought that Cape’s documents could show the asbestos industry’s knowledge of the dangers of asbestos, and the influence which they had had on regulators in setting standards, which would be of likely relevance to other asbestos-related disease claims. The Forum did not point to a specific case in which the documents would be useful but simply argued that the documents would be of general value to claims of this type.
Cape opposed the Forum’s application, not arguing that the documents were confidential, but that the court did not have any jurisdiction to allow the Forum access to the documents at all. The Supreme Court had to decide what court documents the Forum, and non-parties generally, can obtain.
What court records can a non-party obtain?
The Supreme Court held that all courts and tribunals faced with an application of this kind have an inherent jurisdiction to determine to what extent the principle of open justice requires the release of documents to a non-party. Open justice means that justice should not only be done, but be seen to be done. However, a non-party has no automatic right to access court documents, except to the extent that a rule or law grants such a right, and must apply for access. The Supreme Court held that a non-party may apply for access to/use of all documents:
- placed before a judge, and
- referred to by a party at trial.
This includes documents in the trial bundle, including the parties' submissions, but is subject to any court order restricting access, such as to confidential documents.
What does a non-party have to do to obtain court documents?
A non-party must explain why they seek access to the documents they have requested and how granting access will advance the open justice principle. The court then has to balance two factors:
- the potential value of the information sought in advancing open justice, versus
- the risk of harm which disclosure of the documents may cause to the judicial process or the legitimate interests of the party who filed the documents or others.
There are good reasons why a court may deny a non-party access to court documents, from the protection of trade secrets and other commercial information to the protection of national security interests. The outcome of any application for access will therefore be wholly dependent on the nature and content of the documents sought.
The non-party must also show that it is practical and proportionate to be granted access to the court documents sought. For example, from a practical standpoint, it is easier to obtain documents whilst proceedings are underway, as opposed to after they are finished.
How parties can protect court documents
Parties filing documents at court, or providing documents to other parties, should be aware of the risk that they may lose control of those documents – although it is important to note that such risk is not a good reason to fail to disclose or file documents. However, there are practical steps which can be taken to minimise such risks:
- Parties can apply for an order restricting access by non-parties to the court record.
- Parties can also apply for documents to be filed within confidentiality clubs, which place specific limits on who may access the documents.
- Confidential documents should also be clearly marked, so that if an application for access is ever made, it is easy to identify, even years after the event, which information is confidential and may be withheld.