Out-Law Guide | 05 Aug 2011 | 3:03 pm | 2 min. read
People who are not parties to a case (for example, a member of the press or a competing business) may obtain copies of any statement of case or judgment or order made publicly without the need to neither notify the parties nor make a formal application. In addition in judicial review proceedings, the acknowledgment of service and the detailed grounds for contesting the claim will be made available.
Statements of case contain detail about a particular case.
Court documents will be available to non-parties without permission if:
Documents filed with or attached to the statement of case or court orders are excluded from these provisions, as are witness statements.
Preventing access to statements of case
The parties to a case will only be able to prevent access by making an application to restrict access to the court file or restrict access to a limited class of people or limit disclosure to a censored copy of the pleading.
In practice, the fact that the details in the statement of case may be embarrassing or provide some advantage to a third-party is unlikely to be sufficient on its own to persuade the court to restrict access. The most likely cases are where the objecting party can demonstrate that access is likely to involve divulging a trade secret or highly sensitive confidential business information which may be of use to competitors. However, in the absence of any formal guidance from the courts it is difficult to predict what a court will consider when an application for preventing access to court documents is made.
What does this mean for you?
All documents on the court file whether confidential, sensitive or otherwise may be disclosed to people who are not parties to your case. You may want to consider including alternative dispute resolution (ADR) clauses in your contracts, with arbitration and mediation - both private and confidential processes - taking the lead; this will mean that all documents generated for the arbitration or mediation will remain private and confidential.
The rules giving wider access to court documents were introduced on 2 October 2006. They do not have a retrospective effect, so do not apply to statements of case filed before this date - these documents can only be accessed if an application is made to the court. However if statements of case which have been filed before 2 October 2006 are subsequently amended and filed after this date there is no guarantee that they will be kept private.
This right to access court documents is in addition to the ability to search the public register of all issued claims in the High Court which enables a non-party to find out who is suing who.