Dring v Cape Distribution: Non-party entitled to access to documents filed at court in order to investigate whether asbestos-related claim can be brought

http://www.bailii.org/ew/cases/EWHC/QB/2017/2103.html

The background to this application can be found in Weekly Updates 14/12, 18/16, 26/16 and 30/17 (Chandler v Cape Plc and Cape Distribution v Cape International). A parent company was held to owe a direct duty of care to an employee of its subsidiary who contracted asbestosis. That decision was based in part on the fact that the group's medical adviser had carried out research and become an international authority on asbestos-related diseases. The subsidiary's employers' liability insurer had then sought to bring a subrogated claim against the parent company.

The applicant in this case is a non-profit unincorporated association representing 12 asbestos victims' support groups in the UK. It seeks to obtain copies of documents filed by the parties in the litigation described above.

CPR r5.4C allows non-parties to obtain certain documents from the court file without the permission of the court. However, the non-party needs the permission of the court to obtain copies of any other documents (as was the situation in this case). The applicant seeks documents which have been described as "crucial knowledge documents (ie in relation to what was known, by whom, and when, about the risks of asbestos exposure historically)". The classes sought were witness statements, expert reports, transcripts of evidence and all documents disclosed by the parties. Master McCloud has now held as follows:

(1) Documents "filed" on the record of the court which are read in court are subject to a default position in favour of the principle of open justice if the applicant has a legitimate interest. Documents on the records of the court which are not read in court 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 which are not on the records of the court may still be disclosed under the court's common law powers).

(2) The principle of open justice is engaged even if a case settles before judgment.

(3) In this case, bundles which were on paper and filed were records of the court. However, a bundle which was provided solely in electronic form via a document management system (and which contained disclosed documents) was not a bundle filed at court, and so did not fall within the scope of CPR r5.4C: "because 'filing' required delivery to the court office and in any event CPR 5.5 provided that a 'practice direction may make provision for documents to be filed or sent to the court' by electronic means and there was no provision for electronic filing of bundles".

(4) A legitimate interest can include academic interest or use by a pressure group. It was a legitimate aim that the applicant might use the documents to clarify the extent to which the employer might be responsible for product safety issues arising from the handling of asbestos and to assist court claims and the provision of advice to asbestos disease sufferers

(5) The balance was in favour of disclosure of the witness statements (including exhibits), expert reports and transcripts. Partial access to these documents would have led to "cherry picking". Nor had the application been too vague: "This application in strict point of form as issued is effectively an application for the entirety of the documents at court but nonetheless the classes of document were listed (but with a 'catch all' request at the end which meant that the net effect was to request all documents)".

(6) It did not matter that the parties themselves had agreed that a term of their settlement was confidentiality: "It would be very unattractive basis to conclude that the principle of openness should be ousted here so as to respect an agreement that documents freely deployed in open court without apparent concern at the time should cease to be available to public scrutiny merely because the parties so agree privately".

COMMENT: The last point above should be borne in mind when documents are filed at court. If documents other than statements of case have been filed at court (and filing does not include providing documents in electronic form, where no order for electronic filing has been made), they may be vulnerable to an order allowing access to non-parties even though they are later made the subject to confidentiality obligations as between the parties themselves (and even though they may not have been read in court).