UPDATE Cape Intermediate Holdings Ltd (Appellant/Cross-Respondent) v Dring (for and on behalf of Asb
Supreme Court considers the scope of a court’s power to allow a non-party access to court documents referring to CPR 5.4C and the inherent jurisdiction granted by the principle of open justice.
Cape Intermediate Holdings Ltd (‘Cape’) had been involved in the manufacture of products containing asbestos and were subject to a claim brought by an employer’s insurance company. There was an extensive amount of written evidence in the matter and 72 lever arch files were provided for the court bundle.
After the case was settled, the Asbestos Victims Support Group UK (‘Forum’) applied for access to the documents used at, or disclosed, for the trial under CPR 5.4C, which permits third party access to court documents. The Master held that the court had jurisdiction, either under CPR rule 5.4C or at common law, to order Forum be given access to all material sought. This included the hard copy trial bundle, disclosure documents, all witness statements, expert reports, transcripts and written submissions.
Cape appealed and the Court of Appeal, in their judgement (para 9-11), limited disclosure to:
Statements of case, written submissions, skeleton arguments
Witness statements, including expert statements and
Any documents which it was necessary for the non-party to read to meet the principle of open justice. Or had lost their confidentiality must be subject to an application for further disclosure listed before the trial judge or another High Court judge.
The Court of Appeal consequently found that there was no inherent jurisdiction to allow non-parties to obtain any documents just because they were referred to in the hearing. Cape were thus ordered to provide copies of statements of case, witness statements and expert reports. But for any other materials Forum would have to apply to a High Court judge to establish whether any other documents fell within point (iii) above.
Cape appealed to the Supreme Court arguing that the disclosure should be limited to only those statements of case held on the court file, that the scope of any inherent jurisdiction of the court should cover only skeleton arguments or written submissions relied on in court and that the Forum did not have a legitimate interest under the open justice principle. The Forum cross-appealed arguing that the Court of Appeal was wrong to limit the scope of CPR 5.4C.
The Supreme Court judgement, delivered by LJ Hale, outlined the three issues to be addressed (para 15):
What is the scope of rule 5.4C?
Is access to court documents governed only by CPR or does the court have an inherent power to order access regardless of the Rules?
If there is such a power, what is its scope and how should it be exercised?
LJ Hale affirmed that CPR 5.4C(1) gives a non-party a right to access specific documents (statement of case and judgement/order given or made in public). However, the power given to the court to allow a non-party access to a document from ‘the records of the court’ (5.4C(2)) was her focus. She noted that neither CPR 5.4C(2) needed more clarification. She concluded that ‘records of the court’ must mean records which the court keeps for its own use or purpose. Stating that ‘the reasons why records are kept and the reason why access may be granted are completely different from one another’ (para 24) so implying that the principle of open justice cannot be governed by the day-to-day practicalities of the court.
LJ Hale went on to discuss other CPRs and the implications they might have on what documents a non-party might access. She considered rule 39.2 (general rule that court hearings will be in public) and rule 39.9 (any hearing proceedings will be recorded, and a party or non-party can obtain a transcript – for a fee). She also mentioned rule 32.5 (‘a witness statement which stand as evidence in chief is open to inspection unless the court otherwise directs during the course of the trial’). But none provided a precedent for which category of documents the court’s inherent jurisdiction covers.
LJ Hale then considered the common law position. She approved the cases 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”)) and R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening)  EWCA Civ 420;  QB 618 (“Guardian News and Media”) which both clarify the role of the open justice principle and how it should be applied within the judicial system.
FAI involved a request to inspect and obtain copies of documents referred to in witness statements, written openings, skeleton arguments or submissions, to which the judge had referenced and any documents referred to in them, any documents which the judge was requested to read or was included in the reading list or which was read or referred to in trial. The Court of Appeal held that the purpose of witness statements is to encourage a ‘cards on the table’ approach to disclosure, it is not to allow non-parties access to documents that would otherwise have been unavailable to them. They applied the same reasoning to the application of the open justice principle to the request for any document referred to in court or read by the judge.
Guardian News and Media established that the open justice principle is applicable in all UK courts. A district judge ordered two British citizens be extradited to the US and the Guardian newspaper applied for access to affidavits, witness statements, written arguments and correspondence supplied to the judge and referred to in trial but not read out in open court. The District Judge held that the magistrates court did not have the power to permit access and the Divisional Court agreed. The Court of Appeal held that the magistrates court did have inherent jurisdiction to allow access as ‘the requirements of open justice apply to all tribunals exercising the judicial power of the state’ (para 36).
LJ Hale stated that ‘the confidence of the public in the integrity of the judicial process must depend upon having an opportunity to understand the issues.’(para 29) As court proceedings tend to not always be oral, the court has an inherent jurisdiction to allow a non-party access to those documents which would have been read out if the hearing had been conducted orally. Using this reasoning, however, any document referred to but that would not have been read out itself would be inaccessible to non-parties.
LJ Hale confirmed that courts and tribunals have an inherent jurisdiction to allow access to documents or information placed before them (unless prohibited by statute or rules of the court). The issue is not whether they have limited jurisdiction but how and when the power should be exercised. She, again, noted that open justice is to allow for non-party access to documents to enable the public to scrutinise the way in which the court works. She also confirmed that documents to which non-parties are permitted access are not limited to documents the judge has been asked to read or says he has read; documents referred to during the hearing must also be included. This is because the principle of open justice exists to enable the public to understand why the judge made their decision. Hale LJ conceded that it is possible- though rare- for a judge to overlook important information so the public should have the opportunity to see documents the judge had access to. She added that a non-party may never be granted access to a marked-up bundle without the consent of the person holding it, though a court may allow access to a clean copy.
Hale LJ concluded by re-iterating that the issue is not whether the court has power to allow access but whether they should grant access. She emphasised the need for a ‘fact specific proportionality exercise’(para 38) when the court considers whether to grant access and the need for the non-party to ‘explain why he seeks it and how granting him access will advance the open justice principle’ (para 45). She also gave the examples of national security, protecting the interest of children or mentally disabled as well as protecting privacy interests and trade secrets as good reasons why access might be denied.
The supreme court unanimously dismissed the appeal v cross appeal. The court upheld orders (i) and (ii) of the court of appeal and replaced (iii) with an order that the application be listed before the trial judge (or any other High Court judge) to determine whether the court should require Cape to provide a copy of another document placed before the judge and referred to in the coverage of the trial to Forum (at Forum’s expense) in accordance with the principle laid down in the judgement.
The court provided useful guidance to encourage 3rd parties to make requests of litigants They now have a good basis upon which to seek formal applications if they consider they have reasonable grounds to argue their disclosure pursuant to the principle of open justice which can include public scrutiny of the way in which courts decide cases.