English Court of Appeal Clarifies the Rules Regarding Non-Party Access to Documents Filed With the Court

The English court rules have long allowed a non-party to litigation to access and obtain copies of certain key documents in court proceedings, such as statements of case (including the claim form, particulars of claim, defence, and reply) and judgments or orders made by the court. The rules also allow non-parties to apply for further documents from “the court records” with the court’s permission, however the meaning of “the court records” is not defined and the way in which the court’s discretion should be exercised when considering a non-party application has been an area of uncertainty in English litigation for some time. 

In the recent decision of Cape Intermediate Holdings Limited v Mr Graham Dring (for and on behalf of The Asbestos Victims Support Group) [2018] EWCA Civ 1795, the Court of Appeal helpfully summarised the rationale for the rules regarding non-party access and provided greater clarity as to (i) the categories of document that are within “the court records,” and (ii) the circumstances in which a court should grant non-party access to “the court records" and any other documents relevant to the case. 

This decision will be welcomed by non-parties who wish to obtain documents from the English courts for their own purposes, particularly as the Court of Appeal confirmed that “an entirely private or commercial interest” of a non-party in obtaining such documents can amount to a legitimate interest under these rules. 

The Decision 

The Cape Intermediate Holdings case concerned an application by a non-party seeking access to a huge quantity of documents, including the trial bundles which were prepared in connection with certain claims in the English High Court relating to victims of exposure to asbestos. The claims were settled prior to the conclusion of the trial and the bundles requested ran to many thousands of pages and included all documents which were disclosed between the parties in the proceedings. The Master who dealt with the application granted the non-party very wide access to the documents in the trial bundles and a challenge to the Master’s order was brought in the Court of Appeal. 

Balancing Act 

The Court of Appeal explained that the courts must balance the requirements of open justice against efficient use of the courts’ resources when deciding cases such as this – clearly non-parties must be allowed to access certain documents relevant to litigation in order to scrutinise the conduct of judges and understand the courts' decisions, but this right must be weighed against the burden on the justice system if courts were routinely required to copy thousands of pages of (often irrelevant) material. Another factor in many cases is the need to strike a balance between open justice and a litigant’s desire to keep their documents confidential. 

“The Court Records” 

In overturning the very wide access to documents granted by the Master’s order, the Court of Appeal helpfully listed the categories of documents which do not form part of “the court records”: 

1. The trial bundles. 
2. The trial witness statements. 
3. The trial expert reports. 
4. The trial skeleton arguments or opening or closing notes or submissions. 
5. The trial transcripts. 

Instead, the Court of Appeal clarified that “the court records” will essentially comprise only the documents kept by the court office as a record of the proceedings, many of which will be of a formal nature – these will include copies of any communication between the court and the parties in relation to the case and certain formal documents listed in the English court rules¹ including the certificate of service, statement of costs, list of documents, application notices, etc. 

Other Documents Besides “The Court Records” 

The Court of Appeal confirmed that, in addition to the documents from “the court records” listed above, courts also have jurisdiction to grant non-parties access to the following categories of document: 

• Witness statements, including of expert witnesses, which stand as evidence in chief and which would have been available for inspection during the course of the trial under the court rules.² 
• Documents in relation to which confidentiality has been lost³ and which: 
  • are read out in open court; 
  • the judge is invited to read in open court; 
  • the judge is specifically invited to read outside court; or 
  • it is clear or stated that the judge has read. 
• Skeleton arguments, written submissions or similar advocate’s documents read by the court provided that there is an effective public hearing in which the documents are deployed. 
• Any specific document or documents which it is necessary for a non-party to inspect in order to meet the principle of open justice. 

Accordingly the courts should not allow access to entire trial bundles (which typically contain extensive exhibits to witness statements and vast amounts of other confidential documentation disclosed between the parties), given the need to preserve confidentiality in litigants’ documents and to limit the administrative burden on the court providing copies of potentially huge quantities of material to non-parties. 

The Non-Party's Legitimate Interests 

The Court of Appeal considered whether the non-party in this case had a “legitimate interest” in accessing the documents, as this would guide the extent of disclosure the Court would allow. The non-party here was an asbestos victims’ support group that intended to publish any documents it obtained in the hope that others may use them for academic or other legitimate purposes. 

In weighing the interests of the non-party in obtaining the documents against the interests of the litigants in preserving confidentiality in their documents, the Court listed the following factors as likely to be relevant: 

1. The extent to which the open justice principle is engaged. This will occur when there is an “effective hearing” in the litigation. 
2. Whether the documents are sought in the interests of open justice. 
3. Whether there is a legitimate interest in seeking copies of the documents and, if so, whether that is a public or private interest. 
4. The reasons for seeking to preserve confidentiality. 
5. The harm, if any, which may be caused by access to the documents to the legitimate interests of other parties. 

The Court of Appeal stated that the non-party’s intended use of the documents in this case was sufficiently legitimate and confirmed that even “an entirely private or commercial interest” of a non-party in obtaining documents from the court in this way can qualify as a legitimate interest. 

Takeaways 

The Court of Appeal guidance is to be welcomed as it provides clarity around the documentation that can be obtained from the court by a non-party. This can be a useful tool to a non-party to advance potential claims of its own. The Court of Appeal’s confirmation that an entirely private or commercial interest of a non-party can be sufficient to justify granting access to court documents will also be welcomed by prospective non-party applicants. 

Footnotes 

_{1) i.e., the “Court Documents” listed at paragraph 4.2A of CPR 5APD.
2) Under CPR 32.13.
3) Under CPR 31.22.}