Access To Court Documents By An Interested Third Party

What court documents can you gain access to as a third party interested in a case? More importantly, what can third parties access in relation to a case in which you are a party? The recent Court of Appeal decision in Cape Intermediate Holdings v. Dring [2018] EWCA 1795 considers these issues, in particular explaining the extent of the court's discretion both under the CPR and under its inherent jurisdiction. The decision overturns the first instance order, which granted a non-party broad access to court documents, and restores the limited boundaries to the court's discretion.

The rules

The rules as to what a non-party can obtain from the court file are set down in CPR 5.4C. The general rule is that without the court's permission a non-party can obtain statements of case and judgments or orders: CPR 5.4C(1). With the court's permission, it can obtain "from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person" (CPR 5.4C(2)). This demonstrates the common law principle of open justice.

This raises some key issues such as (i) what does "records of the court" mean i.e. what is the court's jurisdiction under the CPR? and (ii) what is the extent of the court's inherent jurisdiction in this area?

The court's jurisdiction under the CPR

The term "records of the court" is not defined in the CPR. However, the term "any other document" implies that this would include most documents throughout the life of a case, such as witness statements, disclosure, expert reports, skeleton arguments, trial bundles and any evidence for interlocutory applications - all of which are, or at least may be, "filed" at court.

Lord Justice Hamblen held that "records of the court" are "essentially documents kept by the court office as a record of the proceedings, many of which will be of a formal nature". The documents that are therefore likely to be included are those set out in paragraph 4.2A of CPR 5APD.4. These include lists of documents but not the documents themselves. They may include witness statements and exhibits in relation to an interlocutory application but not witness statements for trial, expert reports, trial bundles, skeleton arguments or trial transcripts.

The key point to remember is this: "filing is not synonymous with becoming a court record, and indeed communications with the court, which are treated as being part of the 'records of the court', would not necessarily be...