Non-party access to documents on court file: normal service resumes
A master's decision to allow a non-party to proceedings to access a wide range of documents in the proceedings was reviewed by the Court of Appeal in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group)(1). In its judgment, the court provided helpful guidance on the principles that should be applied when deciding whether to allow such an application.
The underlying proceedings related to contribution claims by insurers against a manufacturer in relation to employers' liability policies that they had underwritten. Under those policies, the insurers had paid out to employees who had been exposed to asbestos (and contracted mesothelioma) from products manufactured by Cape Intermediate Holdings Ltd ('Cape') in the course of their employment.
The Asbestos Victims Support Groups Forum UK (AVSGF UK) (a group – not party to the proceedings – which aims to provide help and support to asbestos victims and promote asbestos knowledge and safety) applied to the court for access to the documents filed in the proceedings. The application was made without notice and under Civil Procedure Rule (CPR) 5.4C.
The master who heard the application granted AVSGF UK access to a broad range of documentation in the proceedings under CPR 5.4C, including:
witness statements and exhibits;
- expert reports;
- trial transcripts;
- disclosed documents relied on by the parties at trial, contained in the paper bundles only;
- written submissions and skeleton arguments; and
- statements of case (including requests for further information if contained within the bundles relied on at trial).
The order also permitted AVSGF UK to apply to the court for further determination of the status of any document contained within an electronic bundle of all of the disclosed documents in the proceedings (access to which had been provided at trial for logistical reasons only).
Cape appealed the decision on the grounds that the master had:
- failed to correctly identify which documents the court could permit a non-party to copy; and
- applied the wrong discretionary test.
Cape also argued that AVSGF UK had failed to meet the requisite test ('strong grounds in the interests of justice' or 'legitimate interest').
The key issue for the court was what documents the court has jurisdiction to allow non-parties to inspect, either under CPR 5.4C(2) or by virtue of its inherent jurisdiction.
A non-party to proceedings can apply under CPR 5.4C (supply of documents to a non-party from court records) for access to documents in those proceedings. The relevant provisions for the purposes of Cape are:
(1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of –
(a) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it;
(b) a judgment or order given or made in public (whether made at a hearing or without a hearing), subject to paragraph (1B).
(2) A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person. (Emphasis added.)
Therefore, depending on the court's interpretation of CPR 5.4C(2) and the application of the principle of open justice, a non-party may be able to obtain a broad range of documents.
Before the decision of the master in Cape, CPR 5.4C(2) had been interpreted narrowly. The judge in Pfizer Health AB v Schwarz Pharma AG made clear that there is "no unfettered right to documents on the court file" and that this provision is intended to be a "safety valve". Further, the judgment in GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection & Indemnity Association Ltd stated that "records of the court" did not include documents not filed with the court or held by them as public record, or documents referred to in court (eg, trial bundles and skeleton arguments).
The Court of Appeal allowed the appeal and set aside the master's order on the grounds that it went far beyond the court's jurisdiction and was of "unprecedented scope" (thus maintaining the status quo). The court found that while AVSGF UK was entitled to inspect some of the documents specified in the order (as it had a legitimate interest in doing so), there were a number of issues with the terms of the order, and it should therefore be set aside in its entirety. The parties were instead invited to agree the form of a new order, taking into account the guidance provided in the judgment.
The court considered first whether the documents requested were within the scope of CPR 5.4C – in particular, whether those not directly referenced in CPR 5.4C(1) could be deemed to fall within the potentially broader scope of CPR 5.4C(2) (ie, documents filed with the court or documents communicated to the court). The court held that many of the documents to which the master had granted access were not "records of the court" under CPR 5.4C(2). It was confirmed (following the judgment in GIO) that the definition of 'records of the court' is to be narrowly interpreted as documents kept by the court as a record of the proceedings (principally, those referred to in Paragraph 4.2A of CPR 5APD.4). The court was very clear that trial bundles, trial skeletons, trial transcripts, trial witness statements, trial expert reports and documents referred to within other documents or open court would not generally be considered records of the court. For example, trial bundles are not records of the court because they are provided to the judge and are not stored at court after the trial.
However, the court retained jurisdiction to order the provision of documents where necessary for the purposes of open justice (ie, to enable a person present at the trial to understand the cases put to the judge and, accordingly, 'judge the judges'). This would extend to:
- witness statements which would have been available under CPR 32.13 (ie, witness statements which stand as evidence in chief);
- documents that have lost confidentiality under CPR 31.22 (eg, a disclosed document that has been read to or by the court, or referred to at a public hearing) and which had been read out in open court (or invited to be read, or which it is clear or stated that the judge has read);
- skeleton arguments or written submissions read by the court, if the document was deployed during a public hearing; and
- any specific document or class of document necessary for a non-party to inspect in accordance with the principle of open justice.
As well as providing useful guidance on how the court should deal with applications by non-parties for access to documents, this case is a reminder to parties to proceedings that they should be aware of the potential loss of confidentiality. When filing documents or preparing for trial, parties should always consider whether any material that is unnecessary for the proceedings but potentially damaging to the client should be shared. Parties are exposed to the risk of non-parties requesting access to documents from the moment they step into court. In Cape the underlying proceedings had settled before judgment, but the case settling had no impact on whether the court granted the request for documents.
If a non-party makes an application, a party may wish to draw the court's attention to some of the comments made by the judge in Cape regarding how to deal with the application. For example, the judge stated that:
- an application should be heard by the trial judge and on notice to the parties (if possible);
- the parties should be allowed to make representations;
- the court should provide an explanation for any interim order for the preservation of documents at the end of a matter; and
- any order should specify how the integrity of the court records is to be protected during inspection (so that the court records remain available to other parties).