Supreme Court provides new test for non-party access to materials on court file

The Supreme Court has decided that, subject to safeguards regarding proportionality and the risk of harm to others, an asbestos victims’ support group should be allowed to access all documents referred to in court during a major asbestos liability trial in which the group was not itself involved. The group will be required to pay the costs of providing access.

Background

Under Rule 5.4C of the Civil Procedure Rules (CPR), members of the public are entitled to obtain copies of statements of case, judgments and orders from the court. With the permission of the court, a non-party may also obtain “from the records of the court… any other document filed by a party, or communication between the court and a party or another person.”

Cape Intermediate Holdings Limited v Dring (on behalf of The Asbestos Victims Support Groups Forum UK) [2019] UKSC 38 related to documents filed in a product liability claim against a manufacturer of asbestos. That underlying claim settled after trial, but before judgment was given. An asbestos victims’ support group applied for access to the documents with a view to using them to promote academic consideration of the history of asbestos safety, regulation and knowledge and to assist the court in future cases. The Queen’s Bench, Court of Appeal and Supreme Court all accepted that this was a legitimate interest.

Jurisdiction to allow access

The Supreme Court was required to consider a number of questions regarding the scope of the court’s powers to permit access and how those powers should be exercised:

1. What was the scope of “the records of the court” which a non-party could apply to inspect under CPR 5.4C?
   1. Acknowledgements of service
   2. Application notices and written evidence filed in relation to them
   3. Lists of documents on disclosure.
2. The court held that this meant any document retained by the court in the long term for its own purposes. This would not encompass every document generated in connection with a case, some of which the court would only retain temporarily. Practice might vary over time, but currently court records might include (in addition to statements of case, judgments and orders):
3. Court records did not include witness statements, experts’ reports, transcripts or trial bundles.
4. Is the jurisdiction under CPR 5.4C exhaustive?
5. The Supreme Court held that the jurisdiction under CPR 5.4C is not exhaustive and therefore does not rule out the use of the inherent jurisdiction to allow access to documents that are not mentioned in the Rule. The court’s power to grant access to court documents in the interests of open justice could not be limited by the definition of “records of the court”, which related to the “completely different” purpose of the practical requirements of running a court system.
6. To what documents can the court grant access under the inherent jurisdiction?
7. The Court of Appeal had held that the court could grant access to documents that had been read in open court or should be treated as having been read. The Supreme Court held that the requirement for a document to have been read or deemed to be read was unnecessary. In light of the increasing reliance on written evidence and submissions, it was sufficient to show that the document had been referred to in open court.
8. What test should the court apply when considering whether or not to grant access?
9. After establishing that the document had been referred to in open court, the court should carry out a fact-specific proportionality assessment, taking into account the principle of open justice, the potential of the material to advance that purpose, any risk of harm to the legitimate interests of others, and the practicalities of granting the request.
10. Examples of legitimate interests of others, according to the Supreme Court, could include:

• National security
• The protection of children or vulnerable adults
• The protection of privacy interests
• The protection of trade secrets and commercial confidentiality, e.g. in a patent case

As regards practicalities, the court set out the following guidelines:

• If at all possible, the application should be made while the trial is still in progress so that the material is readily available and identifiable, the parties are before the court and the application can be considered by the trial judge.
• The non-party will be expected to pay the reasonable costs of providing access.
• The most practical way of giving access might often be to provide the non-party with a clean copy of the trial bundle. Under no circumstances would a non-party be granted access to a marked-up trial bundle without the consent of the person holding it.

Decision

Applying these principles to the facts in Cape, the Supreme Court made three orders:

• The court was to provide the victims’ support group with copies of the statements of case for the usual fee.
• The manufacturer was to provide the group with copies of the witness statements, expert reports and written submissions at the group’s expense.
• A hearing would be listed before the judge who had sat in the underlying product liability trial for him to determine whether any other documents from the trial bundle should be provided to the group, applying the tests set out in 3. and 4. above.

Comment

This decision provides a much simpler test for determining which documents the court may provide to a non-party. However, the quid pro quo is that access is potentially rather broader than the Court of Appeal had suggested.

Parties should be conscious that documents filed at court or referred to during a hearing may lose any character of confidentiality or privilege. The documents affected should be kept under review as litigation progresses to avoid surprises. If necessary, parties should consider making a pro-active application to restrict access.

Parties should also avoid taking an overly broad approach to the contents of the trial bundles. In Cape, the core bundle alone amounted to over 5,000 pages, and the electronic version of the trial bundle included all the disclosed documents. Time invested in analysing which documents the judge will genuinely require in order to decide the case will help to reduce the volume of documents that may be exposed to non-party access.