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New Judgment: Cape Intermediate Holdings Limited v Dring [2019] UKSC 38

On appeal from: [2018] EWCA Civ 1795

This appeal considered the powers of the court pursuant to the Civil Procedure Rules or its inherent jurisdiction to permit access to documents used in litigation to which the applicant was not a party.

Pursuant to rule 5.4C of the Civil Procedure Rules, the Forum, an unincorporated association providing support to those who suffer from asbestos-related diseases, applied for copies of documents used in two sets of proceedings involving Cape, which settled after trial but before judgment. Master McCloud allowed the Forum’s application. Mr Justice Martin Spencer granted Cape permission to appeal and ordered that the appeal be heard by the Court of Appeal. The Court of Appeal allowed Cape’s appeal holding that, for the purposes of CPR 5.4C(2), “records of the court” did not extend to witness statements, expert reports, trial bundles, transcripts or written submissions (all of which were subject to Master McCloud’s original order). This part of the decision is being challenged by the Forum and forms subject of the cross-appeal to the Supreme Court.

At the same time, the Court of Appeal held that the court has inherent jurisdiction to allow non-parties inspection of:

  • witness statements;
  • expert reports;
  • documents, which were read out in open court, the judge was invited to read in or outside of court or which it is clear or stated that the judge has read;
  • written submissions deployed at hearing; and
  • any specific documents which it is necessary for a non-party to inspect in order to meet the principle of open justice. This part of the decision is being challenged by Cape and forms subject of the appeal to the Supreme Court.

Held:

The Supreme Court unanimously dismissed the appeal and cross-appeal.

The Court held that an applicant does not have a right for access to be granted (save to the extent that the rules grant such a right). A non-party seeking access must explain why he seeks it and how granting access will advance the open justice principle. The court will then carry out a fact-specific balancing exercise to take account of any countervailing principles, such as the need to protect national security, privacy interests or commercial confidentiality. The practicalities and proportionality of granting the request will also be relevant, especially when proceedings are over.

The Court of Appeal did have inherent jurisdiction to make the order it did, to support the open justice principle, and it could have made a wider order if it were right to do so. The basis for the order was not Rule 5.4C. The Supreme Court held that there was no realistic possibility of  making a more limited order than the Court of Appeal, so the orders for access already made would stand, while the balance of the application be listed before the trial judge (or another High Court judge if that is not possible) to determine whether the court should require Cape to provide a copy of any other document placed before the judge and referred to in the course of the trial to the Forum.

The Supreme Court urged the bodies responsible for framing the court rules in each part of the United Kingdom to give consideration to and consult on the questions of principle and practice raised by this case.

For judgment, please download: [2019] UKSC 38

For Court’s Press Summary, please download: Court’s Press Summary

For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website  (Morning 18 February 2019) (Afternoon 18 February 2019) (Morning 19 February 2019)