Supreme Court Widens Access For Non-Parties To Litigation Documents

In Cape v Dring [2019] EWCA Civ 1795, the Supreme Court has made clear the breadth of the courts' jurisdiction to allow third parties to access documents held by the courts in relation to litigation. It will still be necessary for an applicant seeking access to those documents to pass a test balancing the principle of open justice against the risk of harming the maintenance of the judicial process or legitimate interests of others. However, the extent to which third parties can potentially access documents in litigation may be of surprise and concern to litigants in proceedings which are sensitive for commercial or other reasons. In this briefing we review the judgment and its implications.

Background

The case concerned claims brought against Cape by insurers. Insurers had paid out under employers' liability policies in respect of mesothelioma claims, and were seeking a contribution from Cape, which was alleged to have negligently produced asbestos insulation boards. There was voluminous documentation produced for the trial, and various court bundles. The trial took place, but before judgment was delivered the dispute was settled. The Asbestos Victim Support Groups Forum (UK) ("the Forum") sought to obtain copies of all the documents used at or disclosed for trial, including the trial bundles and transcript, in order to obtain information to assist in other cases.

The Forum's application was made pursuant to Rule 5.4C of the Civil Procedure Rules ("CPR"). Rule 5.4C(1) provides that non-parties can obtain statements of case (but not documents filed with or attached to them) and judgments or orders made in public. CPR 5.4C(2) provides that with the court's permission a non-party may obtain "from the records of the court a copy of any other document filed by a party..."

This issue was considered by the High Court, and then subsequently the Court of Appeal. In broad terms the Court of Appeal ordered that the Forum could obtain certain statements of case and certain witness statements, expert reports and written submissions, and that the matter should be remitted to the High Court to decide whether there were any other documents in relation to which confidentiality had been lost as they had been read out in court, or there were any other specific documents that should be disclosed in order to satisfy the principle of open justice. However, the Court of Appeal's finding was that there was no inherent jurisdiction to permit non-parties to obtain...