In a unanimous decision, the UK Supreme Court has held that non-parties to litigation should be allowed access to certain documents from a trial to which it was not a party.

The Supreme Court held that the court rules do not provide an exhaustive list of the circumstances in which a non-party may access court documents, but stated that courts at all levels have an inherent jurisdiction to allow access in accordance with the guiding principle of open justice.

Relying on CPR 5.4C(2) which provides that a non-party to litigation may, with the Court’s permission, obtain from the court records a copy of any document other than a statement of case or judgment (which are available without permission), the Asbestos Victims Support Groups Forum UK (the Forum) applied for access to the trial bundles and other documents used in two cases against Cape plc which settled after trial but before judgment was handed down. The Forum believed that the documents contained valuable information which would may assist in other asbestos litigation.

In the High Court, Master McCloud held that the Court had jurisdiction to order that the Forum should be given access to the trial bundle. As a result, access was granted to the complete hard copy trial bundle, as well as skeleton arguments and transcripts. Access was not, however, granted to the electronic trial bundle which included all documents disclosed by the parties, whether or not these had been relied on at trial.

Cape appealed to the Court of Appeal, which overturned the order of the High Court. The Court of Appeal limited disclosure to the statements of case, witness statements, expert reports and written submissions. The Court of Appeal ordered that the application for further disclosure should be listed before Master McCloud to decide whether any documents had lost confidentiality as they had been read out in court or by the judge, or whether inspection was necessary to meet the principle of open justice. Cape appealed to the Supreme Court arguing that the Court of Appeal had been too generous, and the Forum cross-appealed to the Supreme Court arguing that the Court of Appeal had been too limited.

The Supreme Court dismissed both appeals. Lady Hale stressed the importance of open justice and held that the default position is that the public should be allowed access not only to the parties’ written submissions and arguments but also to documents which had been placed before the Court and referred to during the course of the hearing. Mere reference to the document during the hearing is sufficient, and it is not necessary that the judge be asked to read the document or that the judge does in fact read the document. The Court held that an applicant does not have an automatic right of access, and a non-party seeking access is required to explain why they require access and how granting the application would advance the principle of open justice. The Supreme Court also differentiated between clean copies of the trial bundle and copies that contain annotations made by those involved in the case (the disclosure of which would require the consent of the party in possession of the bundle).

This decision will have some importance to parties who are not party to a case but nevertheless have an interest in the case, and specifically in details which might not otherwise have been available to them by virtue of the fact that they were not included in documents to which a non-party has an automatic right. Whilst this may be of concern to parties to litigation who would rather certain documents and information are not made available to the wider public, it should be noted that there is still a significant threshold to overcome, and the non-party must explain why access is sought and how granting access will advance the principle of open justice. In this regard, the Supreme Court noted that considerations of national security, the protection of privacy interests and trade secrets, and commercial sensitivity where examples of good reasons for denying access.