Supreme Court backs third party access to court documents

Out-Law News | 01 Aug 2019 | 2:33 pm | 3 min. read

Campaigners, the media and others who are not parties to court proceedings should be permitted to access court documents as "the default position", the UK's highest court has ruled.

However, this is subject to these non-parties showing that they have a good reason for seeking access; there are no competing principles which outweigh this, and granting the request will not be impracticable or disproportionate.

The Supreme Court, in a unanimous judgment, has ruled that the principle of 'open justice' provides for access to a wide range of court documents, extending to any documents placed before the court and referred to at a public hearing. In doing so, it went further than the Court of Appeal, which limited the right to 'records of the court' and certain other documents, essentially those which the judge has read or been asked to read.

Courts and tribunals at all levels have 'inherent jurisdiction' to grant access to such court documents where appropriate, beyond the right to access 'records of the court' allowed for by the Civil Procedure Rules (CPRs), the Supreme Court found.

Lady Hale, giving the judgment of the court, said that one of the objects of allowing access was "to enable the observer to relate what the judge has done or decided to the material which was before him".

"It is not impossible, though it must be rare, that the judge has forgotten or ignored some important piece of information which was before him," she said. "If access if limited to what the judge has actually read, then the less conscientious the judge, the less transparent is his or her decision."

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Michael Fenn

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This reiterates the importance of the principle of open justice, highlighting its vital purpose in enabling public scrutiny.

Applicants, however, had no absolute rights to be granted access, save to the extent granted by the CPRs, she said. The courts would also have to balance the general principle of open justice with any good reasons for denying access such as national security, the privacy of the parties and others involved in the case, and the protection of trade secrets and commercial confidentiality; as well as "the practicalities and proportionality of granting the request", she said.

"It is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle," Lady Hale said. "In this respect it may well be that the media are better placed than others to demonstrate a good reason for seeking access. But there are others who may be able to show a legitimate interest in doing so."

Campaigners at the Asbestos Victims Support Groups Forum (Forum), represented by a Graham Dring, had obtained an order granting them access to a significant volume of material generated during a dispute between a manufacturer of asbestos products and insurers of companies which had been held liable for their employees' exposure to asbestos dust. Last year, the Court of Appeal set aside that order, limiting the Forum's access to the 'records of the court' provided for in rule 5.4C of the CPRs, which gives the court the power to grant access to documents from court records to non-parties to the case, and certain other documents, focusing on those which the judge has read or been asked to read.

Both Dring and the manufacturer, Cape Intermediate Holdings, appealed the Court of Appeal's decision, arguing that the order granted was too narrow and too broad respectively. While the Supreme Court technically dismissed both appeals, ordering the Court of Appeal's order to stand, it referred Dring's application for additional documents back to the trial judge who should decide, based on his inherent jurisdiction as explained by the Supreme Court, whether Cape should be required to provide copies of any additional documents to Dring.

Litigation expert Michael Fenn of Pinsent Masons, the law firm behind Out-Law, said that the Supreme Court had "reiterated the importance of the principle of open justice, highlighting its vital purpose in enabling public scrutiny of the way in which courts determine cases as well as educating the public on how the justice system works and why decisions are taken".

"The decision confirms that, unless inconsistent with statute or rules of court, all courts and tribunals have an inherent jurisdiction to determine what access to documents, or other information, placed before the court or tribunal in question should be granted. Such documents are not limited to statements of case, such as claim forms, defences and so on, and judgments or orders made in public, which non-parties may generally access by simply making a request to the court, under CPR 5.4C, or even to other documents which can be regarded as forming part of the formal 'records of the court'. Instead, the Supreme Court has held that the court's inherent jurisdiction extends to all documents placed before the court and referred to during a public hearing," he said.

Litigation expert Charlotte Evenden of Pinsent Masons said that as the Supreme Court had drawn even wider the class of documents permitted to be requested by a third party than the Court of Appeal, "parties concerned with privacy in litigation now need to be acutely aware of the potential exposure this creates for them".

"This is particularly so given that the inherent jurisdiction is said to apply to all English courts and tribunals," she said.

"Ahead of commencing proceedings, legal advice should be sought so that consideration can be given to confidential ways of resolving disputes – such as mediation – as well as the means by which litigation parties can protect the confidentiality of their documents, for example by way of a 'confidentiality ring' or sealing of the court file," she said.