The Supreme Court has held that there is no limit to the court’s discretion to grant non-party access to court documents. The guiding principle is the need for justice to be done in the open. Courts at all levels throughout the UK have an inherent jurisdiction to allow access in accordance with that principle: Cape Intermediate Holdings Ltd v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK)  UKSC 38.
The court disagreed with the Court of Appeal’s decision (considered here) to the effect that there was no inherent jurisdiction to permit non-parties to obtain trial bundles generally, or documents merely referred to in skeleton arguments/written submissions, or in witness statements/experts’ reports, or in open court.
The decision establishes that the default position is that the public should be allowed access to documents which have been placed before the court and referred to during the hearing. This may make it easier for non-parties to access a wider range of documents. However, it is for the person seeking access to explain why it is sought and, in determining the application, the court must balance the potential value of the information in advancing the purpose of the open justice principle against any risk of harm in providing the information. The practicalities and considerations of proportionality may also be relevant, for example the extent to which the information remains accessible, in particular if the application is made after the proceedings have concluded.
The court also distinguished between clean copies of trial bundles, which it said may be the most practicable way of providing access to non-parties (though that is a matter for the court in any case), and copies that contain markings or annotations made by those involved in the case. Disclosure of the latter will not be ordered, the court said, without the consent of the person holding the bundle.
Rachel Lidgate and Maura McIntosh, a partner and a professional support consultant in the disputes team, consider the decision further below.
The factual background is set out in our post on the High Court decision. The Asbestos Victims Support Groups Forum UK (“the Forum”) brought an application to access the trial bundles and other documents used at the trial of claims against the respondent relating to its former employees’ alleged exposure to asbestos. Those earlier proceedings had settled after trial but before judgment.
The application was made primarily under CPR 5.4C(2), which provides that a non-party to litigation may, if the court gives permission, “obtain from the records of the court a copy of any other document filed by a party” (that is, any document other than a statement of case or judgment or order made in public, which are available without permission under CPR 5.4C(1)). In the alternative, the applicant contended that the court had power to grant access under its inherent jurisdiction.
The High Court (Master McCloud) granted access to the entirety of the paper trial bundle, as well as skeleton arguments and transcripts. However, she did not grant access to documents appearing solely in an electronic trial bundle, which comprised the totality of the parties’ disclosed documents whether or not relied on at trial.
On the respondent’s appeal, the Court of Appeal overturned the Master’s very broad order. It found that the “records of the court” for the purpose of CPR 5.4C(2) were much more limited than the Master had held, and would not normally include trial bundles, witness statements, expert reports, skeleton arguments or written submissions, or transcripts. Nevertheless, the court had an inherent jurisdiction to permit a non-party to obtain:
- witness statements / expert reports which stood as evidence-in-chief and would have been available for inspection during the trial under CPR rule 32.13;
- documents read out in open court, or which the judge was invited to read in court or outside court, or which it was clear or stated that the judge had read;
- skeleton arguments or written submissions deployed at a public hearing; and
- any other specific documents necessary for a non-party to inspect in order to meet the principle of open justice.
But, the Court of Appeal held, there was no inherent jurisdiction to permit non-parties to obtain the trial bundles generally, or documents merely referred to in skeleton arguments/written submissions, witness statements/experts’ reports, or in open court.
The respondent brought a further appeal to the Supreme Court, and the Forum cross-appealed. The Media Lawyers Association intervened in the appeal.
The Supreme Court gave judgment clarifying the extent of the court’s powers to permit non-party access to court documents. Lady Hale delivered the judgment of the court.
The court noted that CPR 5.4C(2) allows non-parties to obtain documents from the “records of the court”, but this term is not defined. In the Supreme Court’s view, the term must refer to those documents and records which the court itself keeps for its own purposes, not every document filed with the court. However, the court said, current practice as to court record keeping cannot determine the scope of the court’s power to order access to documents in particular cases.
The court noted that the Court of Appeal in the present case had largely adopted the approach in GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection and Indemnity Association Ltd (FAI General Insurance Co Ltd intervening)  1 WLR 984 (“FAI“). In that case it was held that the predecessor rule to CPR 5.4C(2) did not cover documents referred to in witness statements, as they would not have been available to non-parties attending court and listening to evidence-in-chief before witness statements were introduced. The same reasoning applied to documents referred to in court or read by the judge, unless they had been read out in court and thus entered the public domain. The Court of Appeal’s approach in the present case was similar, though it recognised that the law had been developed in certain respects, so that for example the inherent jurisdiction included documents treated as read in open court (eg those the judge was invited to read and those it was clear the judge had read) as well as those actually read out.
The Supreme Court noted that the Court of Appeal in this case had the “unenviable task” of trying to reconcile the very different approaches taken in FAI and in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening)  EWCA Civ 420 (“Guardian News and Media”). In that case the Court of Appeal found that, where documents have been placed before a judge and referred to in the course of proceedings, the default position should be that access should be permitted on the open justice principle.
In the present case, the Supreme Court held that it is clear that the court rules are not exhaustive of the court’s powers to grant non-party access to court documents. Unless inconsistent with statute or court rules, all courts and tribunals in the UK have an inherent jurisdiction to permit access in accordance with the principle of open justice. It is not correct to talk in terms of limits to the court’s jurisdiction; the question is how the jurisdiction should be exercised in a particular case.
The principal purposes of the open justice principle are, first, to enable public scrutiny of the decision making process and and, second, to enable the public to understand how the justice system works and why decisions are taken. This requires the public being put in a position to understand the issues and the evidence adduced. Given modern trial practice, where the old oral tradition has been replaced to some extent by written argument and evidence, it is difficult or impossible in many cases to understand what is going on without access to the written material.
The Supreme Court endorsed the default position set out in Guardian News and Media, which it said had also been endorsed in earlier Supreme Court decisions, that the public should be allowed access, not only to the parties’ written submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing. This was not limited to what the judge had been asked to read or said he had read. Though it might be rare, it was not impossible that the judge had forgotten or ignored some important piece of information; if access was limited to what the judge had actually read then “the less conscientious the judge, the less transparent is his or her decision”.
It is for the party seeking access to explain why access is sought, and to explain how granting access will advance the open justice principle. The media may be better placed than others to demonstrate this, but others may also be able to show a legitimate interest in obtaining access. In determining whether and to what extent a non-party should be given access the court must carry out a fact-specific balancing exercise between, on the one hand, the potential value of the information in advancing the purpose of the open justice principle and, on the other, any risk of harm to an effective judicial process or the legitimate interests of others. The practicalities and considerations of proportionality may also be relevant – eg if an application is made after the proceedings are over, where the court and the parties may no longer have the material, or the burdens in identifying it and retrieving it may be out of proportion to the benefits – though, the court noted, increasing digitisation of court materials may eventually make this easier.
As regards trial bundles, the Supreme Court commented that the court will not order disclosure of a bundle that has been marked or annotated by the advocates or others involved in the case without that person’s consent.
Finally, the Supreme Court urged the Civil Procedure Rule Committee (and the other bodies responsible for framing court rules in the UK) to give consideration to the questions of principle and practice raised by this case, including the extent of any continuing obligation of the parties to co-operate with the court in furthering the open justice principle once the proceedings are over. These questions are, the court said, “more suitable for resolution through a consultative process in which all interests are represented than through the prism of an individual case”.