Whether non-party allowed access to witness statements referred to at a pre-trial hearing

The applicant (a non-party to the proceedings) sought access to witness statements which had been referred to at a pretrial hearing. CPR r5.4C allows non-parties to obtain copies of statements of case from the court record, but that does not include documents filed with the statement of case (such as witness statements). However, permission can be sought from the Court for access to any documents filed by a party. Leggatt J rejected an argument that he had no power to allow access to the witness statements in this case because they were not on the court file. A document is “filed” at Court when it is delivered to the court office and it does not matter if a copy of the document is no longer on the court file (as the court could order the document to be filed again or for a copy to be provided directly to the non-party). The judge also rejected an argument that it is implicit in CPR r32.13 that a non-party cannot be allowed to inspect a witness statement until it stands as evidence in chief during the course of the trial.

Accordingly, the Court did have power to give permission for a non-party to have access to the witness statements. However, the judge cautioned that “There are, in my view, good reasons why the court should not generally make witness statements prepared for use at a trial publicly available before the witnesses give evidence” (paragraph 12). The judge went on to find that “once documents have been placed before a judge and referred to at a public hearing, access to the documents should be permitted other things being equal. But it does not remove the need for the court to consider the particular circumstances, including the nature of the documents in question, their role and relevance in the proceedings and, importantly, the purpose for which access to the documents is sought” (paragraph 21). If the purpose of the non-party here had been to facilitate a better understanding of the arguments made at the hearing, then, in the absence of a sufficient countervailing reason, the open justice principle would indicate that access should be allowed. However, that was not the purpose here and the application was (in the main) refused.