The Supreme Court held that the Civil Procedure Rules give non-parties only limited access to the records a court keeps for its own purposes. Courts nevertheless have an inherent power, grounded in open justice, to allow access to documents placed before the court and referred to at a hearing where the applicant shows a good reason and a fact-specific balance favours disclosure. In this case part of an existing access order was left in place and the question of any further documents was remitted for decision under those principles.
Cape Intermediate Holdings Ltd, a company involved in the manufacture and supply of asbestos, was the defendant in a six-week trial before Picken J. Insurers who had paid damages to employees suffering from mesothelioma sought a contribution from Cape, alleging negligence in the production of asbestos insulation boards and in the way information about the risks had been presented. Cape denied the allegations and contended that the employers were solely responsible. After the trial, but before judgment, the claims were settled by a consent order in March 2017.
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The Asbestos Victims Support Groups Forum UK was not a party. It supports people affected by asbestos-related disease and promotes knowledge and safety. Through Mr Dring, it applied without notice under CPR rule 5.4C for copies of the documents used at or disclosed for the trial, including the trial bundles and transcripts. It believed the material would reveal what the industry knew about the dangers of asbestos and might assist courts and parties in other claims. A Master ordered that the documents remaining at court be preserved and later directed that the Forum receive the hard-copy trial bundle, witness statements, expert reports, transcripts and written submissions. The much larger electronic bundle of disclosed documents was to be retained but not provided.
The Court of Appeal allowed Cape’s appeal in part. It held that the records of the court for the purposes of CPR rule 5.4C(2) were much more limited than the Master had thought and would not normally include trial bundles, witness statements, expert reports, skeleton arguments, written submissions or transcripts. It accepted an inherent jurisdiction to permit a non-party to obtain witness statements and expert reports standing as evidence in chief, documents whose confidentiality had been lost because they were read out or treated as read, skeleton arguments and written submissions deployed at an effective public hearing, and any specific document necessary for open justice. It ordered copies of the statements of case on the court file, together with listed witness statements, expert reports and written submissions, and directed that a High Court judge decide whether any further document fell within the limited categories it had identified.
What the rules cover
Three issues arose. The first was the scope of CPR rule 5.4C(2). The rule gives a non-party a right to a statement of case and to a judgment or order made in public, and permits the court to allow a copy of any other document filed by a party, or of a communication between the court and a party or another person, to be obtained from the records of the court. Filing means delivery to the court office, but not every document delivered in that way is a court record. A record is something kept as a permanent or long-term account of what the court itself needs. Practice Direction 5A indicates the sorts of documents a party may obtain from the records and does not include trial witness statements, expert reports, transcripts or trial bundles. What the court keeps for running the system is a different question from what a non-party may properly see.
Open justice
The second and third issues were whether access is governed only by the rules and, if the court has a wider power, how far it extends. Lady Hale, delivering the judgment of the court, held that the rules are a minimum, not a complete code. Unless inconsistent with statute or the rules, courts and tribunals exercising the judicial power of the state have an inherent jurisdiction to decide what open justice requires by way of access to documents or information placed before them. The extent of access allowed by the rules does not determine the exercise of that jurisdiction, save where the rules contain a valid prohibition.
Open justice serves two principal purposes. It enables the public to scrutinise judicial decisions and to have confidence that judges are doing their work properly. It also enables the public to understand how the system works and why decisions are taken, which requires an understanding of the issues and the evidence. When argument and evidence were given orally, a person in court could follow the case. Much of that material is now in writing and is often not read out, so access to the written material may be necessary.
In principle, the public should be able to see written submissions and documents placed before the court and referred to during a hearing. The applicant must explain why access would advance open justice. The judge weighs that purpose against the risk of harm to legitimate interests, and considers how practicable it is to supply the material. A non-party has no automatic entitlement to take a copy of the whole trial bundle.
A trial bundle is a compilation prepared for convenience. It is not itself the evidence. A marked or annotated bundle cannot be disclosed without the holder’s consent. A clean copy, if still available, may be a practical way of giving access, but that is for the judge hearing the application.
The result for these parties
Both Cape and the Forum were incorrect about the legal basis of any wider order. The Court of Appeal had jurisdiction to make the order it made and could have made a wider order, but the basis was the inherent jurisdiction in support of open justice, governed by the principles in Guardian News and Media as explained in Kennedy, A v British Broadcasting Corporation and this case, not CPR rule 5.4C(2). Cape challenged the existing order on jurisdiction rather than on its merits and advanced no countervailing rights of its own. There was no realistic possibility of a more limited order for the documents already directed to be supplied. Whether any other document placed before the judge and referred to during the trial should be provided was to be decided by applying the principles stated by the Supreme Court.
The court added that the issues had arisen in unusual circumstances, after the trial but while clean copies remained available. It had heard no argument on the extent of any continuing obligation of the parties to co-operate once proceedings are over. It invited the bodies responsible for the court rules to consider the questions of principle and practice after a consultative process.
Verdict: The Court unanimously dismissed Cape’s appeal and the Forum’s cross-appeal. It preserved orders for the specified documents and directed the High Court to decide what additional documents, if any, Cape should supply at the Forum’s expense.
Source: Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38
