Can Non-Parties Obtain Copies Of Documents From The Records Of The Court In England And Wales?

Introduction

In Cape Intermediate Holdings Ltd v Dring ( for and on behalf of the Asbestos Victims Support Group) [2018] EWCA Civ 1795, the Court of Appeal set aside an Order giving a non-party unprecedented access to documents held in court at the end of a trial. It

clarified the extent of a non-party's right to obtain copies of documents filed in court proceedings and the principles to be applied when a non-party seeks access to such documents.

In summary, the Court's power to allow non-parties access to documents under CPR r5.4C is very limited but it may permit access to certain categories of documents pursuant to its inherent jurisdiction if the open justice principle is engaged.

CPR r5.4C

CPR r5.4C governs the provision of documents to a non-party from court records. Rule 5.4C(1) and (3) contain the general rule, which is, broadly, that a non-party may obtain from the court records copies of statements of case and judgments or orders given or made in public, but not until an acknowledgement of service or defence has been filed.

The application made by Mr Dring was, however, made pursuant to r5.4C(2):

"A non-party may, if the court gives permission, 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."

Background to the appeal

This was an application for access to all documents used at or disclosed for a trial about asbestos-related damages. The litigation had settled after trial but before judgment was handed down.

At first instance, the Court found that "records of the court" meant all documents filed with the court, including trial bundles and documents, such as skeleton arguments, held with them. It found that Mr Dring had a legitimate interest in accessing them, and made an Order granting him permission to obtain copies of the following documents from the records of the court:

The witness statements including exhibits Expert reports Transcripts Disclosed documents relied on by the original parties at trial contained in the paper bundles only Written submissions and skeletons arguments Statements of case to include requests for further information and answers if contained in the bundles relied on at trial. Did the Court have the power to permit access?

On Cape's appeal, the Court of Appeal considered the issue of the Court's jurisdiction in the context of the principle of open justice and the provisions of the CPR.

Open Justice

The...