Access to court documents

In Dring v Cape Intermediate Holdings Ltd [2020] EWHC 1873 (QB), the High Court has further clarified the rights of non-parties to litigation to obtain documents from the court file.

In a 2019 judgment in the same proceedings, the Supreme Court provided what is now the leading authority on this issue (Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38).  The Supreme Court held that all courts have the power to allow non-parties to access any materials placed before the Court and referred to during a hearing, not only under CPR 5.4(C) (which relates to documents kept by the Court for its own records), but also under the courts' inherent jurisdiction (which is potentially of wider application).  The default position is that access to such materials should be granted.  However, when considering whether to grant access, the courts must conduct a fact-specific balancing exercise, between the potential value of the requested materials in advancing the principle of open justice, and the risk of any harm such disclosure would cause to an effective judicial process or the legitimate interests of others, whilst also considering the proportionality and practicality of providing access.

Having confirmed the applicable principles, the Supreme Court then remitted the case to the High Court to determine how those principles should be applied on the facts.  The application was brought by the Asbestos Victims Support Groups Forum UK, which wanted access to documents from a trial in which Cape (an asbestos manufacturer) had been the defendant, primarily for use in other asbestos-related litigation.  The applicant had already been granted access to the pleadings, witness statements, expert reports and written submissions, but it also requested copies of all other documents placed before the judge and referred to in the course of the trial.  The High Court refused the extended application, primarily on the basis that access would not advance the open justice principle.  Among the court's reasons, the Forum did not need the entire trial bundle to understand the underlying proceedings or the trial process, Cape would not be able to explain its own documents in other proceedings, and the provision of all requested documents would be disproportionate.  The High Court was also of the view that the use of court documents in other litigation was less likely to advance open justice than, for example, disclosures to the press.

Prospective applicants for court documents, including non-parties looking to use them in related proceedings, must bear these principles in mind.  At the same time, litigants should also be conscious of the courts' wide discretion to grant access to documents put before the Court.  If there are specific concerns about non-party access to trial documents, early consideration should be given to whether restrictions can be put in place, such as an order restricting access to statements of case under CPR 5.4.C(4).

See our parallel proceedings microsite for further insight into the issues that arise when an incident leads to multiple legal proceedings and/or enforcement actions.