Supreme Court Clarifies Broad Scope Of Court's Discretion To Grant Non-Party Access To Court Documents

The Supreme Court has held that there is no limit to the court's discretion to grant non-party access to court documents. The guiding principle is the need for justice to be done in the open. Courts at all levels throughout the UK have an inherent jurisdiction to allow access in accordance with that principle: Cape Intermediate Holdings Ltd v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK) [2019] UKSC 38.

The court disagreed with the Court of Appeal's decision (considered here) to the effect that there was no inherent jurisdiction to permit non-parties to obtain trial bundles generally, or documents merely referred to in skeleton arguments/written submissions, or in witness statements/experts' reports, or in open court.

The decision establishes that the default position is that the public should be allowed access to documents which have been placed before the court and referred to during the hearing. This may make it easier for non-parties to access a wider range of documents. However, it is for the person seeking access to explain why it is sought and, in determining the application, the court must balance the potential value of the information in advancing the purpose of the open justice principle against any risk of harm in providing the information. The practicalities and considerations of proportionality may also be relevant, for example the extent to which the information remains accessible, in particular if the application is made after the proceedings have concluded.

The court also distinguished between clean copies of trial bundles, which it said may be the most practicable way of providing access to non-parties (though that is a matter for the court in any case), and copies that contain markings or annotations made by those involved in the case. Disclosure of the latter will not be ordered, the court said, without the consent of the person holding the bundle.

Rachel Lidgate and Maura McIntosh, a partner and a professional support consultant in the disputes team, consider the decision further below.

Background

The factual background is set out in our post on the High Court decision. The Asbestos Victims Support Groups Forum UK ("the Forum") brought an application to access the trial bundles and other documents used at the trial of claims against the respondent relating to its former employees' alleged exposure to asbestos. Those earlier proceedings had settled after trial but before judgment.

The application...