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Devina Shah is an Associate in CMS’ Commercial Litigation and Arbitration Group.  She practises a broad range of commercial disputes, including fraud/conspiracy and across a range of sectors including finance, construction and technology.  Prior to joining CMS, Devina was an Associate at a US litigation boutique firm where she specialised in competition follow-on actions before the High Court and the Competition Appeal Tribunal.  In the below article, Devina comments upon the decision handed down last week by the UK Supreme Court in the cross-appeal case of Cape Intermediate Holdings Ltd v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK) [2019] UKSC 38. 

In a decision described as a “victory for open justice”, the Supreme Court has held that non-parties to litigation are entitled to access certain documents from a trial to which it was not a party.

Handing down a unanimous decision, Lady Hale ruled that the default position is that the public should be allowed access not only to parties’ submissions and arguments, but also to documents which have been placed before the court and referred to during the hearing. Even if the judge has not been asked to read the document and/or has not done so, provided the document has been referred to during the hearing, there is a prima facie right of access.

Whilst the decision may make it easier for non-parties to access a wider range of documents, the Court cautioned that it is for the person seeking access to explain why it is sought. In determining the application, the Court must balance the potential value of the information in advancing the purpose of open justice against any risk of harm in providing the information.

Background

By way of background, the Asbestos Victims Support Groups Forum UK (the “Forum”), which is an unincorporated association that provides support to those who suffer from asbestos-related diseases, applied for access to the trial bundles and other documents used in two sets of proceedings against asbestos manufacturer Cape. Those cases settled after trial but before judgment and the Forum believed that the documents contained valuable information that could aid other asbestos-related litigation.

The Forum relied on 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” (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.

Decision at first instance and by the Court of Appeal

At first instance, Master McCloud held that the Court had jurisdiction, either under CPR 5.4C(2) or at common law, to order that the Forum should be given access to the trial bundle.  Access was therefore granted to the entirety of the paper trial bundle, as well as skeleton arguments and transcripts.  However, access was not given to documents appearing solely in an electronic trial bundle, which included all the parties’ disclosed documents, whether or not relied on at trial.

In a leapfrogged appeal by Cape, the Court of Appeal overturned the order made by the High Court and limited disclosure to the statements of case held by the Court and the provision of witness statements, expert reports and written submissions. The Court ordered that the application for further disclosure be listed before the trial judge to decide whether any other documents had lost confidentiality and had been read out in court or by the judge, or inspection was necessary to meet the principle of open justice.

Cape appealed and the Forum cross-appealed to the Supreme Court, arguing that the Court of Appeal had been, respectively, too generous and too limited. The Media Lawyers Association also intervened arguing that access to court documents was essential to allow the media to play its role as the eyes and ears of the public.

Decision of the Supreme Court

The Supreme Court unanimously dismissed both appeals. Stressing the importance of open justice and endorsing the decision in Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, Lady Hale explained that the default position was that the public should be allowed access not only to the parties’ written submissions and arguments, but also to documents which had been placed before the Court and referred to during the hearing.  That applied whether or not the judge had read the documents.  Though 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”.  The principal purposes of open justice are, first, to enable public scrutiny of the decision making process and, second, to enable the public to understand how the justice system works and why decisions are taken. That requires the public to be put in a position to understand the issues and the evidence adduced.

However, the Court held that an applicant did not have automatic right for access to be granted (save to the extent that the rules granted such a right). Rather, a non-party seeking access must explain why they seek access and how granting the application would advance the open justice principle.  Setting out the fact-specific balancing exercise to be conducted by the court, Lady Hale explained that the court will have to take in account any countervailing principles:

“…On the one hand will be ‘the purpose of the open justice principle and the potential value of the information in question in advancing that purpose’.

On the other hand will be ‘any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others’.”

The practicalities and considerations of proportionality may also be relevant, for example the extent to which the information remains accessible, particularly where access is sought after proceedings have concluded.

The Supreme 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 would require the consent of the party holding the bundle.

Application to this case

Applying the above principles to the present case, the Supreme Court held that Cape was wrong in arguing that the Court of Appeal did not have jurisdiction to make the order that it had made. The Court of Appeal not only had jurisdiction to make that order but to make a wider order if it were right to do so. However, the Forum had been wrong to argue that the Court should have made a wider order under CPR 5.4C(2); the basis for making a wider order was the inherent jurisdiction of the Court in support of the open justice principle.

The Supreme Court concluded that, since there was no realistic possibility of a High Court judge making a more limited order than the Court of Appeal, the orders for access already made would stand, while the balance of the application should be listed before the trial judge (or another High Court judge if that was not possible) to determine whether the court should require Cape to provide the Forum with a copy of any other document placed before the judge and referred to during the trial, at the Forum’s expense.

Concluding remarks

Describing the case as an “important” one, the Supreme Court held that the court rules do not provide an exhaustive list of the circumstances in which a non-party may access court documents.  The guiding principle, though, is that of open justice and courts at all levels have an inherent jurisdiction to allow access in accordance with that principle.

In a postscript, Lady Hale urged the Civil Procedure Rule Committee (and the other bodies responsible for framing court rules) 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 principle of open justice once the proceedings are over.