Publicity remains the “soul of justice” as Supreme Court rules non-party should be allowed access to court documents

Background

In 2017, Cape Intermediate Holdings Limited (“Cape”) appeared as defendant against employers who, through their insurers, sought contributions from Cape towards pay-outs to employees who had been exposed to asbestos from products manufactured by Cape.

“Voluminous documentation” was produced for the trial with the core bundle containing over 5,000 pages in 17 lever arch files. After the trial, but before judgment was delivered, the claims settled.

The Asbestos Victims Support Groups Forum UK (the “Forum”) applied under Civil Procedure Rule 5.4C (which governs third party access to “the records of the court”) to obtain documents from the Cape case, as it believed the documents would contain valuable information about the industry’s knowledge of the dangers of asbestos to assist with victims’ claims.

In the first instance, the High Court Master ordered the Forum be granted access to all of the requested documents. Cape’s appeal of that decision was transferred to the Court of Appeal which, in July 2018, set aside the Master’s order (for jurisdictional reasons) and ordered more limited inspection of certain kinds of documents, remitting the case to a High Court judge to decide on the remainder (see the judgment here). It held when doing so that, in addition to a power under CPR 5.4C to order access to “records of the court” only, the courts also have an inherent jurisdiction to grant access to non-parties to certain wider categories of documents in the interests of open justice. In exercising either kind of discretion, the court was said to be likely “to lean in favour” of granting access if the principle of open justice is engaged and the applicant has a legitimate interest in inspecting the documents.

Both parties appealed with the Media lawyers Association successfully intervening in the appeal by raising the issue of the significance of the case’s outcome to journalists and citing the concept that “publicity is the very soul of justice”.

Judgment of the Supreme Court

In its judgment, the Supreme Court confirmed that while the CPR only allows non-parties access to certain limited kinds of court documents, the court rules are not exhaustive of the circumstances in which access may be granted; the guiding principle is the need for justice to be done in the open and courts at all levels have an inherent jurisdiction to allow access in accordance with that principle.

The Supreme Court noted the two principal purposes of open justice, being to enable (a) “public scrutiny of the way in which courts decide cases” and (b) “the public to understand how the justice system works and why decisions are taken”. For both, the public must be able to “understand the issues and the evidence adduced in support of the parties’ cases”.

The Supreme Court held that non-parties should be permitted access, “not only to the parties’ written submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing”. Access should not, therefore, be limited to documents the judge has read.

Yet, it was held, the court’s power to award access is not accompanied by an applicant’s automatic right to be granted it. Instead, the non-party must justify their application and explain how giving them access “will advance the open justice principle”. The court must then undertake a fact-specific balancing exercise, to weigh up the potential value of the information sought in advancing open justice against any risk of harm which disclosure may cause to maintaining an effective justice process or to the legitimate interests of others, taking into account the practicalities and proportionality of the request.

Ultimately, the Supreme Court made the same order as the Court of Appeal in respect of access to the documents in question.

Postscript

In reaching its verdict, the Supreme Court noted how proceedings have evolved to manage the complexities of modern litigation (e.g. increasingly replacing oral with written submissions and hard copy documents with digitised versions). The Court was keen to ensure the benefits in time and costs of such changes did not erode the principle of open justice.

Its decision not to limit access only to documents read out in proceedings is a reflection of this concern, but the Supreme Court went further and asked the bodies responsible for framing the court rules to “give consideration to the questions of principle and practice” raised. It concluded by inviting a consultative process through which the questions touched upon could suitably be resolved, including the extent of any continuing obligation on the parties to co-operate with the court in furthering the open justice principle once proceedings are over (particularly in circumstances where clean copies of the documents in question are not so readily available as they were in this particular case).

Comment

The immediate publicity around the case has focused on the robust result for open justice in what is a useful clarification of a fundamental legal principle’s operation. However, the decision has also exposed questions as to how the principles can be applied beyond the confines of the case so the proposed consultation is desirable.

In the meantime, following this decision, we may expect to see litigants wishing to limit public access to particularly sensitive documents in a case to challenge any non-party application for access in a number of ways, including by:

• challenging whether an applicant has any legitimate interest in seeking access and whether access will advance the open justice principle – the Supreme Court noted that the media will be better placed than others to demonstrate a suitably good reason for seeking access;
• putting forward good reasons for denying access – the Supreme Court listed a number of “the most obvious ones”, the most relevant for most businesses perhaps being the protection of trade secrets and commercial confidentiality; and
• by raising issues of practicability and/or proportionality – for example, if the application is made once the case is over and no clean copies of the documents in question have been kept, or it would be particularly difficult or expensive to retrieve them.