This case concerns the extent and operation of the principle of open justice. The Supreme Court was required to consider how much of the written material placed before the court in a civil action should be accessible to people who are not parties to the proceedings, and how it should be made accessible to them.

Factual background

Cape Intermediate Holdings Ltd (Cape) is a company that was involved in the manufacture and supply of asbestos. In January and February 2017, Cape defended a claim brought by insurers of employers who had paid damages to former employees who had contracted mesothelioma in the course of their employment. The proceedings were settled after the trial had ended, but before judgment was delivered.

The Asbestos Victims Support Groups Forum UK (the Forum) is an association that provides help and support to people who suffer from asbestos related diseases and is involved in lobbying and promoting asbestos knowledge and safety. The Forum was not a party to the proceedings brought against Cape, but, on 6 April 2017, applied under Civil Procedure Rule (CPR) 5.4C to preserve and obtain copies of all the documents used at or disclosed for the trial, including trial bundles and transcripts. The Forum believed that the documents would contain valuable information about asbestos. After a three day hearing in October, the master held that she had jurisdiction, either under CPR 5.4C or at common law, to order that a non-party be given access to all the material sought and ordered that the Forum be provided with the hard copy trial bundle, all witness statements, expert reports, transcripts and written submissions.

Cape appealed against the master’s decision and, in July 2018, the Court of Appeal set aside the master’s order. The Court of Appeal held that the ‘records of the court’, for the purpose of the discretion to allow access under CPR 5.4C, were much more limited than the master had held and would not normally include trial bundles, trial witness statements, trial expert reports, trial skeleton arguments or written submissions; or trial transcripts. Nevertheless, the Court held that it had an inherent jurisdiction to permit a non-party to obtain (i) witness statements of witnesses, including experts, whose statements or reports stood as evidence-in-chief at trial under CPR 32.13; (ii) documents in relation to which confidentiality had been lost under CPR 31.22; (iii) skeleton arguments or written submissions read by the court, provided that there is an effective public hearing at which these were deployed; and (iv) any specific documents which it was necessary for a non-party to inspect in order to meet the principle of open justice. The court said there was no inherent jurisdiction to permit non-parties to obtain trial bundles or documents referred to in skeleton arguments or written submissions or in witness statements or experts’ reports, or in open court, simply on the basis that they had been referred to in the hearing.

Cape appealed to the Supreme Court and the Forum made a cross-appeal.

Legal issues

The Supreme Court held that there were three issues to consider.

Issue 1 – what is the scope of CPR 5.4C(2)?

CPR 5.4C(2) says ‘A non-party may, if the court gives permission, obtain 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.’ CPR 2.3 says ‘filing, in relation to a document, means delivering it, by post or otherwise, to the court office’.

The Forum said the court was wrong to limit the scope of CPR 5.4C as it did, as any document that has been delivered to the court office has been ‘filed’ and the court may therefore give permission for a non-party to obtain a copy.

The court said there were two problems with this argument. Firstly, the fact that filing is to be achieved in a particular way does not mean that every document that reaches court in the same way has been filed and, secondly, the copy is to be obtained from ‘the records of the court’, a term that is not defined by the Civil Procedure Rules or any other legislation. The court said that this term must refer to those documents and records which the court itself keeps for its own purpose and cannot refer to every single document generated in connection with a case and filed, lodged or kept for the time being at court. However, the court held that current practice in relation to what is kept in the records of the court cannot determine the scope of the court’s power to order access to case materials in particular cases as the purposes for which court records are kept are completely different from the purposes for which non-parties may properly be given access to court documents. The court held that the principle of open justice is completely distinct from the practical requirements of running a justice system and that what is required for each may change over time, but the reasons why records are kept and the reasons why access may be grated are completely different from one another.

Issue 2 – Is access to court documents governed solely by the Civil Procedure Rules, or does the court have an inherent power to order access outside the Rules?

Cape argued that the treatment of court documents is largely governed by the Civil Procedure Rules and the scope of any inherent jurisdiction is very limited.

The court reviewed the authorities and held that there could be no doubt at all that the court rules are not exhaustive of the circumstances in which non-parties may be given access to court documents. The court said that the rules are a minimum and the extent of any access permitted by the rules is not determinative. It is not correct to talk in terms of limits to the court’s jurisdiction when what is in fact in question is how that jurisdiction should be exercised in the particular case. The guiding principle is the need for justice to be done in the open and that courts and tribunals at all levels have an inherent jurisdiction to allow access in accordance with that principle.

Issue 3 – if there is such an inherent power, how far does it extend and how should it be exercised?

In considering this issue, the court said that the main purposes of the open justice principle are two-fold. The first is to enable public scrutiny of the way in which courts decided cases, to hold judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly, and the second is to enable the public to understand how the justice system works and why decisions are taken. The court said that for this to work the public have to be in a position to understand the issues and evidence adduced. Access should not be limited to those documents which the judge has been asked to read or has said that he has read as, if this was the case, the less conscientious the judge, the less transparent his or her decision would be.

The court went on to say that although the court has the power to allow access, the applicant has no right to be granted it and it is down to the applicant to explain why he seeks it and how granting him access will advance the open justice principle. The court said that in this respect the court has to carry out a fact-specific balancing exercise, with the purpose of the open justice principle and the potential value of the information in question on one hand and the risk of harm which its disclosure may cause to the maintenance of an effective juridical process, or to the legitimate interests of others, on the other. The court said that some of the most obvious reasons for denying access are national security, the protection of children or mentally disabled adults and the protection of trade secrets and commercial confidentiality.

The court said that in considering an application it was also relevant to consider the practicalities and proportionality of granting the request. Touching on this, the court said that it is highly desirable that the application is made during trial when the material is still readily available, the parties are before the court and the trial judge is in day-to-day control of the court process.

Finally, touching on trial bundles, the court held that there can be no question of ordering disclosure of a marked up bundle without the consent of the person holding it.

Applying these principles to the facts of this case, the court held that the Court of Appeal not only had jurisdiction to make the order that it did, but also that it had jurisdiction to make a wider order if it were right to do so.

This case shows that the principle of open justice, in terms of non-parties accessing court documents, is very wide, and is a useful decision for non-parties to rely on. However, a party making an application for access to court documents under this principle, must remember that there is no automatic right of access and that it is required to explain why access is needed and how granting access will advance the principle of open justice.