In Cape Intermediate Holdings Ltd v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK)¹ the UK Supreme Court has given guidance on non-party access to documents filed in litigation in the English Courts. This update follows our article from August 2018² which considered the Court of Appeal’s ruling on the same case. The Supreme Court decision expands the categories of documents that are potentially available provided the non-party applicant can “demonstrate a good reason for seeking access.”

The Facts

Cape Intermediate Holdings Ltd was the defendant in a six-week trial concerning alleged liability for asbestos losses. The case settled after the trial but before the judgment was delivered. Voluminous documentation was produced and filed with the Court for the trial.

Subject to limited exceptions, the procedural rules governing English High Court litigation allow third parties (i.e. those not party to the litigation) access to the claim form and parties’ statements of case direct from the court office. This does not extend to documents referred to in the parties’ statements of case but not appended to them. A formal application for permission is required to obtain further documents from the court (including documents referred to in the parties’ statements of case).

Mr Dring, on behalf of the Asbestos Victims Support Groups Forum UK (the Forum), a body providing support to people suffering from asbestos-related diseases, applied to the Court for copies of all documents used at the trial, including the trial bundles and transcripts. Neither the Forum nor Mr Dring were parties to the proceedings, but made the application on the basis that the documents used in the trial would contain information valuable to the Forum’s work.

The Court of Appeal had found that a non-party’s access was essentially limited to those documents which had been used in open court, leading to appeals to the UK Supreme Court.

The Supreme Court’s Decision

By a unanimous decision, the Supreme Court widened the categories of document to which a court can grant access to a non-party applicant.

The Supreme Court stressed the importance of the open justice principle and confirmed that the English court rules are not exhaustive of the circumstances in which non-party access to documents may be given. All courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question.

The Supreme Court considered the open justice principle to have two primary purposes, although it noted there may be others:

• To enable public scrutiny of the way in which courts decide cases
• To enable the public to understand how the justice system works and why decisions are taken

It followed that the public should be allowed access in appropriate cases, 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. Importantly, these should not, as had previously been thought to be the case, be limited to the documents which a judge has been asked to read or has said that they have read and could instead extend, for example, to gaining access to a complete copy of the trial bundle.

The Supreme Court did stress that an applicant has no express right to access (save to the extent that the rules grant such a right). An applicant must therefore explain why they are seeking access and demonstrate how granting access would advance the open justice principle. The Court must then weigh the applicant’s reasons against the legitimate interests of others in preventing disclosure and any risk of harm that disclosure may cause. Such legitimate interests will include national security, the protection of trade secrets, and commercial confidentiality. The practicalities and proportionality of granting the request are also relevant, especially if the application is made after the trial when the trial bundles may no longer be available nor copies of relevant material readily retrievable.

Takeaways

At a time when court hearings are increasingly reliant on written submissions and documents not expressly read out in court, the Supreme Court’s ruling cuts through fine distinctions as to whether a document has or has not been referred to in court. The ruling expressly noted that a clean copy of the trial bundle may be the most practicable way of affording a non-party access to the material in question, suggesting that access to trial bundles should be fairly readily available in appropriate cases.

The Supreme Court offered relatively little guidance as to the types of case in which the grant of access would further the open justice principle, although it did note that the media may well be better placed than others in that regard. However, it does appear that, where a case gives rise to an issue of interest to a wider market, it should be possible for those interested in that market to gain access to the trial bundle or a subset of it.

From a practical standpoint, non-parties seeking to access documents filed in English litigation should seek to frame any application with the open justice principle at its core. Applications should also be made, ideally, either shortly before or as soon as possible after any trial or relevant hearing to avoid practical difficulties with obtaining copies of the documents. The trial bundle will likely be an appropriate starting point for the documents to be sought but that may need to be tailored, depending on the size of the trial bundle and whether there are sub-sets of it that will allow the case to be understood fully.

For litigants and prospective parties to English proceedings, consideration should be given to seeking protection prior to the trial over any categories of document which contain information that would potentially be damaging in the public domain. This will include documents of particular commercial sensitivity or confidentiality. Consideration should also be given as to whether such documents are strictly necessary for any trial bundle or if they can be included in a distinct and easily separable sub-section.

Footnotes

1) [2019] UKSC 38

2) English Court of Appeal clarifies the rules regarding non-party access to documents filed with the court