High Court decides first case on non-party access to court files following the Supreme Court’s restatement of the test 

The High Court has rejected a non-party’s request for access to additional trial documents on the basis that the request did not advance the open justice principle and also confirmed that the legitimate interest test no longer applies to such requests. In reaching its decision, the court applied the principles of the restated test set by the Supreme Court for determining whether a non-party should be granted access to trial documents pursuant to the Civil Procedure Rules or the court’s inherent jurisdiction.

Non-party access to court documents

Rule 5.4C of the Civil Procedure Rules (CPR) states “The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of…” statements of case, judgments and orders from the court. Additionally, with the permission of the court, a non-party may also obtain “from the records of the court… any other document filed by a party, or communication between the court and a party or another person.”

Background

In a roller-coaster spanning over three years, the High Court, Court of Appeal and the Supreme Court have all given different steers to the issue of non-party access to trial documents in the case of Dring (for and on behalf of Asbestos Victims Support Groups Forum UK) v Cape Intermediate Holdings Ltd [2020] EWHC 1873 (QB). This culminated in the present decision, after the request was remitted to the High Court for final determination applying the Supreme Court’s restated test.

Cape was a defendant in the original six-week trial in the High Court in 2017, which related to a product liability claim against it as a manufacturer of asbestos. That underlying claim was settled after trial commenced, but before judgment. A non-party, Forum, (an asbestos victims’ support group) obtained an injunction and preservation order preventing destruction of documents disclosed in the proceedings and applied for access to the entire trial bundle with a view to using the documents to promote academic consideration of the history of asbestos safety, regulation and knowledge and to assist the court in future cases.

Forum’s application for access was contested by Cape, which argued that the open justice principle was not engaged if a case settled before a decision was reached. The application was heard over three days, following which a High Court Master ordered that Forum be granted access to all documents in the trial bundle pursuant to CPR 5.4C or pursuant to the High Court’s inherent jurisdiction.

Cape appealed to the Court of Appeal, which set aside the Master’s order. In relation to CPR5 .4C, the Court of Appeal held that Forum had engaged the open justice principle and also had a legitimate interest in obtaining trial documents. These factors led the court to lean in favour of granting access to most, but not all, of the key documents which formed part of the trial bundle. These were the documents which the judge had “read” or had been “specifically invited to read”.

Both parties appealed to the Supreme Court. Cape appealed on the basis that the order granting access was still too wide and should be limited to statements of case on the court file in line with CPR 5.4C. Forum appealed on the basis that the order did not go far enough and should have included all “documents placed before a judge and referred to by a party at trial …and …should not be limited by what the judge has chosen to read”.

The principle of open justice governing non-party access

The Supreme Court dismissed both appeals, ordered that the case be remitted to the High Court and set out the principles of open justice which should be applied at the remitted hearing. The Supreme Court also confirmed that it was no longer appropriate to apply the “legitimate interest” approach the lower courts had adopted.

The Supreme Court stated that the purpose of open justice is two-fold. First, “to enable public scrutiny of the way in which courts decide cases” and second “to enable the public to understand how the justice system works and why decisions are taken”. It added that this constitutional principle applied to all courts and tribunals and that in furtherance of that principle it was not correct to speak of limits to the court’s jurisdiction, but rather how that jurisdiction should be exercised in individual cases.

In exercising its jurisdiction, the court must conduct “a fact-specific balancing exercise” considering and appropriately weighing various factors. Among these are, on the one hand, the open justice principle and whether this will be advanced by granting access, and on the other hand the risk of harm which disclosure may cause to the judicial process or to the legitimate interests of others.

Decision

In applying the Supreme Court’s guidance to its balancing exercise, the High Court confirmed that the fact that a party was seeking access for purposes collateral to that of advancing the principle of open justice would not automatically preclude access. Rather, it would be a factor which attracted less weight in the exercise. As such, the fact that Forum might facilitate the use of documents in other litigation, even against Cape, was not in and of itself a bar to access.

The High Court rejected Forum’s application for access to additional documents, noting that having engaged the principle of open justice, Forum had previously received sufficient documents to enable it to understand both the issues and evidence in the underlying proceedings. Forum’s request for additional documents was based on the now obsolete “legitimate interest” test and, moreover, would do nothing to advance the interests of open justice.

Sealing its rejection of Forum’s request for access to additional documents, the High Court observed that Forum was not truly seeking to advance the open justice principle, but simply trying to obtain documentation for use in other litigation. Such an application for third party disclosure was subject to separate procedures and constraints which Forum was in effect seeking to evade.

Comment

The High Court has provided a helpful practical application of the Supreme Court’s restated test for non-party access to trial documents. The Supreme Court clarified that a non-party application for access to trial documents is not limited to those mentioned in CPR 5.4C, but includes a wider category of documents under the court’s inherent jurisdiction to grant access. Although the category of potential documents which can be accessed is wider, the restated test is unlikely to ‘open the floodgates’ as may have been anticipated, since such requests must not only be in line with the principles of open justice but must also be shown to actively advance those principles. As Mr Justice Picken stated in handing down the High Court’s decision, “If the position were otherwise, and an applicant could merely insist on production of documents on the basis that this would be in accordance with the open justice principle, there would be nothing to stop anybody making an application and doing so in overly wide terms.”

The Supreme Court (as now emphasised by the High Court) has confirmed that “It is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle.” In terms of practicalities, parties are reminded that it is better to make applications for access during the trial when material may be more readily available and while the trial judge has day to day control of the court process.

The authors would like to acknowledge the assistance of Tamika Chingandu, trainee at CMS London, in preparing this article.