The Supreme Court has ruled that the court has far reaching jurisdiction to allow non-parties access to court documents, but it will only allow such access where doing so furthers the principle of open justice: Cape Intermediate Holdings Ltd v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK)  UKSC 38
An insurer sued an asbestos manufacturer (Cape) for contributions to pay-outs it had made for mesothelioma contracted from Cape’s products. Trial happened, but before judgment the proceedings were settled.
An asbestos victims’ forum (the Forum) sought non-party access to the documents referred to at trial. The Forum believed that these documents would show the asbestos industry’s knowledge about the dangers of asbestos which would help with other (unspecified) claims.
The Forum relied on CPR 5.4C. This is the court rule that allows non-parties access to (a) statements of case, judgments and orders given or made in public without the permission of the court and (b) “from the records of the court a copy of any other document filed by a party” with the permission of the court. The Forum also argued the court had jurisdiction to grant access under its common law inherent jurisdiction.
At first instance the Forum was granted access to all the documents referred to at trial under both CPR 5.4C and at common law. The Court of Appeal however reined in the court’s jurisdiction. It held that the “records of the court” referred to in CPR 5.4C would not normally include trial bundles, trial witness statements, trial expert reports, trial skeleton arguments or written submissions. Access to many of these documents could be allowed under the court’s inherent jurisdiction, but that jurisdiction would not cover trial bundles or documents referred to in skeleton arguments, written submissions, witness statements, expert reports or in open court, simply because they had been referred to at the hearing.
Both Cape and the Forum appealed. Cape said the court had less jurisdiction and the Forum more.
Limited meaning of “records of the court” under CPR
The Supreme Court considered the court’s jurisdiction to grant non-party access. Whilst CPR 5.4C clearly encompassed statements of case and public judgments and orders, it was less clear what constituted “records of the court” filed by a party. Conceptually, these must be those records kept for court purposes (as opposed to a party’s purposes). As a result not every document filed by a party is a “record of the court” under CPR 5.4C (eg it will not include all evidence filed by a party as, although the parties may need a record, the court does not).
Inherent jurisdiction much wider – covers all documents “referred to” at a hearing
However, the Supreme Court held that the court’s inherent jurisdiction went much further. It includes all documents that the court is “referred” to at a hearing (as opposed to “read”; a non-party’s rights of access should not be reduced when faced with a less conscientious judge not reading the documents to which they were referred).
Non-party must show access will advance open justice
The Supreme Court then looked at when the court should exercise its discretion and allow non-party access. It said the guiding principle for granting access must be that it furthers the principle of open justice.
The principle of open justice has two main purposes. First, to enable public scrutiny in order to hold the court to account. Secondly, so that the public can understand how the justice system works and why decisions are taken. To achieve these purposes the public needs to understand the issues and evidence put before the court. In the past a great deal of argument and evidence was put before the court orally, but now this is often just considered in written form. It can therefore be difficult (especially in complicated cases) to know what is going on without access to this written material.
Even where no judgment is ultimately handed down, the Court of Appeal made clear (and this was not reconsidered by the Supreme Court) the principle of open justice is engaged once a hearing has taken place.
Once the non-party has satisfied the court that access furthers the principle of open justice, the court must go on to consider whether the risk of harm to the effective judicial process or the legitimate interests of others (eg privacy expectations and the protection of trade secrets and commercial confidentiality) means that access should be denied. In addition, the practicalities and proportionality of allowing non-parties access may also mean access should not be granted. Logistical difficulties will be particularly acute where the documents are sought after the end of trial (although the digitalisation of documentation may eventually alleviate this consideration).
Supreme Court orders non-party access to documents referred to at trial
On the facts of this case the Supreme Court was clear that, under its inherent jurisdiction, it had the power to grant non-party access to the documents as they were all referred to at trial.
What was less clear was whether it should exercise its discretion to allow access. The Supreme Court did not need to grapple with whether the principle of open justice was furthered by granting access. Cape had attacked the Court of Appeal’s ruling on jurisdiction (rather than on its merits) and had not set up any countervailing rights of its own. In these circumstances, the Supreme Court said there was no realistic possibility of a more limited order being made than that given by the Court of Appeal (with its more limited view of its jurisdiction and the principles governing the exercise of that jurisdiction). It therefore allowed access to the same documents as the Court of Appeal and, in relation to the remaining documents sought, ordered the trial judge to reconsider whether disclosure should be granted in accordance with the principles it had laid down.
Non-party access is a significant issue to many litigants who understandably have serious concerns that sensitive material before the court will end up in the hands of journalists, pressure groups or future litigants. This judgment does nothing to dispel those concerns. The litigant will need to show a compelling reason why the principle of open justice should be displaced and access restricted. Although there is little litigants can do to prevent such access they should be aware of this risk whenever they are involved in litigation.