The High Court in Dring v Cape Distribution Limited et al [2017] has allowed disclosure of a large number of documents concerning the development of knowledge in respect of certain asbestos containing materials from an earlier case.

Background

In the course of product liability litigation, which raised questions about what was known, and when, by the manufacturer of certain asbestos containing materials about the safety of these products, certain documents were disclosed. These documents included material concerning Asbestolux and Marinite insulation board.

The application

The applicant, on behalf of the Asbestos Victims Support Groups Forum (UK), sought disclosure of a wide categories of documents filed at court. As Master McCloud said, the application dealt with “significant questions as to a member of the public’s rights of access to documents ‘filed on the records of the court ’which include material relating to the history and development of knowledge in the 20th century about the risks of asbestos.”

Pursuant to CPR 5.4C(2): “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 a court and a party or another person.”

The decision

Master McCloud allowed disclosure of a large amount of material:

(i) the witness statements including exhibits,

(ii) expert reports,

(iii) transcripts,

(iv) disclosed documents relied on by the parties at trial i.e., those in the paper bundles only,

(v) written submissions and skeletons,

(vi) statements of case including requests for further information and answers if contained in the bundles relied on at trial.

The reasons for this included:

The open justice principle:

Master McCloud considered that: openness fosters the scrutiny of the courts by the public; protects the integrity of the court process; and assists the development of the law and legal knowledge.

She set out that the courts do not merely provide a public service to the ‘users’ who appear before them, as if they are consumers of a product. She also set out that use of the court entails that the parties submitting to the jurisdiction do not have full sovereignty to determine, simply by private agreement between themselves, the extent to which the public may be made aware of any aspect of the proceedings before the court.

CPR 5.4C is the primary means by which the court’s common law power to allow access to documents to the public from the court record is administered but the common law is said to be ‘the master and not the servant of the rules’.

Where documents are filed and are read in court, these can be disclosed (following an application to the court) so long as the applicant has a legitimate interest. But even where the applicant has a legitimate interest, then the court must still consider the balancing exercise against any harm to other parties’ legitimate interests, when deciding whether to allow access. Documents which the court holds, but which have not been read (for example at a hearing), are subject to a more stringent test, namely there must be strong grounds for thinking that access is necessary in the interests of justice. Served documents, not on the court’s record do not fall within rule 5.4C but may be disclosed under the court’s common law powers. The principle of open justice is engaged notwithstanding that a case may settle before judgment.

Legitimate interest in access

Once a document has been sufficiently deployed in court to give rise to the starting point of openness, there is still a need for the applicant to show a legitimate interest (and thereafter to consider the ‘balancing exercise’ in relation to possible harmful effects to others’ legitimate interests).

A legitimate interest can from those authorities include academic interest, use by a pressure group or use in some journalistic form amongst other uses.

The applicant in Dring acts for a group which provides help and support to asbestos victims. In some respects it is also a pressure group and is involved in lobbying for and in promoting asbestos knowledge and safety. The court has ruled that those are legitimate activities and provide legitimate interest.

‘Standing’, specificity and balancing exercise

The degree of specificity which is possible in an application under rule 5.4C must necessarily be limited in practical terms by the fact that without seeing the documents in the first place the best that can be expected so as to assist the court is that general categories of documents be identified unless there is a particular identified document which is known about and is sought.

Master McCloud was satisfied that the content of these documents:

  1. would be likely to be of academic and scientific interest as part of public and social discourse as to the history of asbestos safety, regulation and knowledge as it developed during the 20th century;

  2. would be likely to be considered when advising parties to asbestos litigation as to the merits of their cases whenever issues arise which touch upon Technical Data Note 13 and connected Regulations;

  3. is likely to be relevant to the product safety of asbestos insofar as understood within the major manufacturers and connected companies as compared with general public at various points in the 20th century; and

  4. is likely to be relevant to the extent to which employer-defendants could have been expected to appreciate the risks of asbestos (in that regard the material will not necessarily assist claimants as against employers per se, if, as the applicant’s side suspect, TDN13 was essentially a bogus standard created by the asbestos industry).

Implications

As Master McCloud said in her conclusion to the Judgment:

There is a strong public interest in facilitating a better understanding of the history of asbestos safety and the origins of TDN13. There is a legitimate interest in ensuring that material deployed in this case is available to courts and legal advisers in the interests of both consistency of decision making and provision of advice as to merits or lack thereof, and to enable the public to discuss and consider how the material in this case led to a settlement.”

As Professor Zuckerman has observed, civil justice involves ‘competing needs’. On the face of it, greater availability of evidence will assist in achieving justice on the merits. Baker v Quantum Clothing Group Ltd showed the importance of official guidance documents in establishing knowledge (and thus duty). Williams v University of Birmingham was considered in Dring. For defendants in general, it is official guidance at the time of the alleged breach which should be the touchstone for knowledge and thus duty.