In Blue v Ashley [2017] EWHC 1553 (Comm), the High Court considered whether a member of the public or press should be given access, in advance of a trial, to witness statements which had previously been referred to at a pre-trial hearing, and prepared for the purpose of the trial.  Times Newspapers Limited (TNL), which was not a party to the dispute, had applied for access to them pursuant to CPR 5.4C(2).  The defendant, Mr Ashley (of Sports Direct International plc (SDI)) opposed the application.

Open justice

The principle of open justice requires court proceedings to be conducted in public, except where to do so would cause injustice. It is fundamental to the common law system of England and Wales and it has been noted that the courts have an inherent jurisdiction to determine how the principle should apply. TNL's application engaged the principle and the court made clear that whilst it has power to direct that a non-party should be given access to witness statements before a trial, it does not necessarily follow from this that such an order will be granted.

Also of importance, and closely related to this point, is the role of witness statements in the litigation process. Leggatt J held that there are important reasons for witness statements, prepared for the purpose of use in a trial, not being publicly available in advance of the trial, and crucially before the witnesses have given their evidence. The purpose of written witness evidence is to enable the parties to more efficiently prepare for trial, as well as to aid settlement.

It was not disputed that a member of the public has a right to inspect a witness statement once it has been adduced as evidence during trial (CPR 32.13). However, open justice does not extend to a right of inspection before trial – this is not necessary in enabling the public to scrutinise the justice system.

Access denied

TNL's argument turned on the witness statements having been (tangentially) referred to in a previous hearing in open court. Previous case law established that in such a scenario, the default position should be to permit access. However, in each case the court must consider in particular the nature of the documents in question, their role and relevance and the purpose for which access is sought. Here Leggatt J found that TNL had no legitimate purpose for accessing the documents – an interest in reporting the evidence witnesses will provide at an impending trial does not support open justice and is not in the interest of the parties or the public.

A non-party may not be able to rely on the default position in CPR 5.4C (which applies to statements of case) to obtain copies of witness statements in advance of the evidence they contain being adduced in open court.