Court Of Appeal Overturns Decision Granting Very Broad Non-Party Access To Court Documents

The Court of Appeal has overturned a High Court Master's order granting non-party access to the entirety of the hard copy trial bundles in a case that settled before judgment. The decision helpfully clarifies the extent of the court's discretion to grant non-party access to court documents, both under the CPR and under its inherent jurisdiction: Cape Intermediate Holdings Limited v Dring [2018] EWCA 1795 (Civ).

The upshot of the decision is that the court has no discretion to permit non-parties to inspect the trial bundles generally, or documents merely referred to in skeleton arguments, witness statements/expert reports, or in open court. In addition to formal documents kept on the court file, which may be provided to non-parties under CPR 5.4C, the court has an inherent jurisdiction to permit inspection of:

witness statements and expert reports that stand as evidence in chief during trial (but not documents exhibited to them); documents which are read or treated as read by the court, ie because they have been read out in open court, the judge has been specifically invited to read them (whether in open court or outside court), or it is clear or stated that the judge has read them; skeleton arguments/written submissions and similar advocates' documents deployed at a public hearing; and any other specific documents necessary for a non-party to inspect in order to meet the principle of open justice. In terms of the exercise of its discretion, the court has to balance the non-party's reasons for seeking inspection against the parties' interests in preserving confidentiality. The court is likely to lean in favour of granting permission where the principle of open justice is engaged and the applicant has a legitimate interest in inspection - and this decision confirms that the principle of open justice will be engaged as soon as there is a hearing of the matter, whether or not it settles before judgment. Conversely, where the open justice principle is not engaged, the court is unlikely to grant permission unless there are strong grounds in the interests of justice.

This decision will be welcomed by litigants as restoring more limited boundaries to the court's discretion to grant non-party access to court documents, in contrast to the very broad approach taken by the Master in this case. However, even following the Court of Appeal's decision, it is clear that litigating parties cannot prevent documents becoming publicly available by settling the case before judgment. The principle of open justice will be engaged once there is a hearing; a judicial decision is not required.

Rachel...