Court of Appeal narrows non-party access to materials on court file

The Court of Appeal has narrowed the categories of documents that are to be made available to an asbestos victims’ support group following a major asbestos liability trial in which the group was not itself involved. The court specified that it would only exercise its discretion to allow access where documents were required in order to “understand and scrutinise the trial process”. The court also clarified the procedure to be followed in applications for 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 from the court file. To access other documents filed at court, non-parties require the permission of the court, either under CPR5.4C or under the inherent jurisdiction of the court. The court will usually give permission if the documents have been read in open court - or are treated as having been read - provided the applicant can show a legitimate interest that is not outweighed by any potential harm to the interests of others. If the documents have not been read in open court, and are not treated as having been read, the applicant must show strong grounds for thinking that access is necessary in the interests of justice.

Dring (on behalf of The Asbestos Victims Support Group) v Cape Intermediate Holdings Limited [2018] EWCA Civ 1795 related to documents filed in a product liability claim against a manufacturer of asbestos which 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. Master MacCloud accepted that this was a legitimate interest. She made an order that was described by the Court of Appeal as “of unprecedented scope”, allowing access to the witness statements and exhibits, expert reports, transcripts, paper trial bundles, written submissions and skeletons, and statements of case. She did not allow access to bundles that existed only in electronic form and had not been referred to in court. The manufacturer appealed against the order.

Principles governing access

The Court of Appeal agreed that the interest of the support group was a legitimate one, but held that the court did not have jurisdiction to allow access to many of the categories of documents covered by the Master’s order. Hamblen LJ summarised the applicable principles as follows:

A non-party is entitled under CPR 5.4C to obtain copies of the statements of case.

• The court has inherent jurisdiction to allow a non-party to inspect the following documents:
  • Witness statements and experts’ reports that stand in evidence in chief;
  • Documents that are read out in open court; which the judge is invited to read in open court; which the judge is specifically invited to read out of court; or which it is clear or is stated that the judge has read;
  • Skeleton arguments, written submissions and similar advocacy documents that are read by the court and deployed at an effective public hearing;
  • Any specific documents that it is necessary for a non-party to inspect in order to meet the principle of open justice.
• The test for whether inspection is necessary is whether the document is required in order to “understand and scrutinise the trial process”. This is only the case where the documents are judicially considered as part of a decision-making process. If an action or application settles before the hearing, no order should be made, even if the judge has begun pre-reading. However, if it settles between the hearing and the decision, access can be ordered in appropriate cases.
• The court has no jurisdiction to allow a non-party to inspect documents that have merely been included in the trial bundles or referred to in skeleton arguments, submissions, witness statements, experts’ reports or in open court.
• The court may provide a non-party with copies of any documents it is allowed to inspect, but the non-party must normally pay the copying costs and any other costs of compliance.

Procedure

Sir Brian Leveson P added a number of comments on the procedure adopted by the Master, from which the following guidelines can be distilled for future applications of this type:

• Wherever possible, the application should be heard by the trial judge and on notice to the parties.
• The court should not make any interim order for the preservation of documents after the conclusion of a matter without explaining the basis for doing so.
• The parties should be given the opportunity to make representations on the form of the final order.
• The order should contain safeguards to ensure the integrity of the court records during the inspection process and to ensure that others wishing to access the records could do so. For instance, court staff should supervise any copying of documents, and originals should not be released.

Decision

Applying these principles to the present case, the court held that the support group had a right to access the statements of case. The court also had a discretionary jurisdiction to allow access to the witness statements, expert reports, written submissions and skeleton arguments. It did not have jurisdiction to allow access to the transcripts of the trial, nor to make a generalised order in respect of exhibits and trial bundle documents that had not been read or treated as read in open court. The court set aside the Master’s order and invited the parties to agree the form of a new order taking into account the principles set out above.

Comment

Following this decision, access to justice remains a broad ground for seeking disclosure of documents from the court file. However, the court’s discretion in this regard will now be more restricted than it appeared to be after the Master’s order.

Parties should be conscious that documents filed at court may lose any character of confidentiality or privilege. The evidence relied upon at trial should be planned with the scope of public access in mind. At the conclusion of the case, it is advisable to review what documents may have become part of the public record. If an application for access is made, parties may find it useful to draw the court’s attention to Sir Brian’s comments on the procedure to be followed, particularly as regards the safeguards to be included in any final order.