Whether company entitled to its costs in defending application for access to documents filed at court in another case

A parent company was held to owe a direct duty of care to an employee of its subsidiary who contracted asbestosis. That decision was based in part on the fact that the group's medical adviser had carried out research and become an international authority on asbestos-related diseases. The subsidiary's employers' liability insurer had then sought to bring a subrogated claim against the parent company.

The applicant in this case is a non-profit unincorporated association representing 12 asbestos victims support groups in the UK. It seeks to obtain copies of documents filed by the parties in the litigation described above.

CPR r5.4C allows non-parties to obtain certain documents from the court file without the permission of the court. However, the non-party needs the permission of the court to obtain copies of any other documents (as was the case here). In particular, the applicant seeks documents which have been described as "crucial knowledge documents (ie in relation to what was known, by whom, and when, about the risks of asbestos exposure historically)".

Master McCloud initially ordered that a trial bundle which contained the electronic disclosure by the parties should be re-lodged at court on a hard disk drive in a format readable by the court without the use of proprietary software. That was done because there had been prima facie evidence to suggest that there was a likelihood that that disclosure may imminently be destroyed (the relevant bundle having been removed from court).

In this case, she has now held that the Cape parties may make representations regarding the application for access to the documents on condition that they may not seek any order for costs against the applicant. In reaching this decision, she noted that the Cape parties (an "interested party") had not sought an order to restrict the right of the public to access documents on the court file (an order which could have been sought under CPR r5.4C(4)). She continued that "I must consider the public interest in avoiding the serious risk that the resources brought to bear by Cape, which may choose to incur considerable cost to oppose access to court records in its own commercial interest, would snuff out the application, leaving the question whether these documents should or should not be copied from the court record, and the related question as to whether they are part of the court record at all, unanswered".