Proposed New Rule Would Radically Expand Public Access To Court Documents

• Published date: 25 March 2024
• Subject Matter: Litigation, Mediation & Arbitration, Court Procedure
• Law Firm: Herbert Smith Freehills
• Author: Mr Chris Bushell, Julian Copeman and Maura McIntosh

The Civil Procedure Rule Committee is consulting on a revised rule 5.4C which, as currently drafted, would lead to parties' witness statements, expert reports and skeleton arguments becoming public at a much earlier stage of proceedings than is currently the case. While it is clearly important that the press and the public should have appropriate access to court documents, in accordance with the principle of open justice, it is not clear that the current proposals strike the right balance.

Responses to the consultation are due on 8 April and Herbert Smith Freehills will be submitting a response. If any clients would like to discuss the proposals, please do get in touch.

The current position

At the moment, the only documents non-parties are able to obtain automatically from the court file under CPR 5.4C, without the court's permission, are the statements of case (eg claim form, particulars of claim and defence) and any judgments or orders made in public (whether at a hearing or otherwise). The rules also separately provide that witness statements are open to inspection during trial, once the witness has been called to give evidence, so in practice these are often provided by the parties on request. Skeleton arguments are also often provided at trial, voluntarily, as the Commercial Court Guide encourages.

Non-parties can apply to the court for permission to obtain any other category of document, either under CPR 5.4C or under the court's inherent jurisdiction to provide non-party access - which the Supreme Court has held is unlimited and should be exercised to give effect to the principle of open justice (see Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 considered in our blog post here). However, the principle of open justice applies where there has been a judicial decision: it enables the public to understand why decisions are taken and to scrutinise the decision-making process. In general, court documents will not be available to the public where they have not formed any part of the decision-making process, for example because a case has settled before a hearing.

The proposed new rule

Against that backdrop, the proposed new rule makes quite radical changes. Proposed CPR 5.4C(1) contains two separate provisions which would allow non-parties to obtain court documents without the need for permission:

• The first, (1)(a), would enable a non-party to obtain "from the court records" the following additional categories of documents: skeleton arguments...