More transparency over court documents is coming, businesses told

Kate Aldwinckle and Emilie Jones of Pinsent Masons were commenting after more detail emerged about plans designed to open up access to certain documents in commercial litigation in England and Wales.

The ‘public domain documents pilot’ is a proposal developed by a sub-group of the Civil Procedure Rules Committee (CPRC). The CPRC is led by High Court judge Mrs Justice Cockerill. It makes rules and practice directions governing civil litigation proceedings in England and Wales.

According to minutes of the CPRC’s meeting in June (15-page / 265KB PDF), under the pilot, businesses involved in certain court proceedings would be required to make “documents which enter the public domain as a matter of common law principles” accessible to the public using the public-facing part of the court’s CE-File system, an electronic document filing system.

“The pilot only applies to documents which enter the public domain via a hearing which takes place in open court,” the CPRC said. It will not, therefore, increase the public availability of documents unless and until such a hearing takes place. The CPRC minutes further explain that “where a hearing is conducted in private [the pilot] does not apply.”

The default position would be that documents covered by the pilot would need to be made accessible to the public. It is understood that this would need to take place within a certain period of time after the public hearing in question. However, businesses would be able to apply to the court for exceptions to be made. According to the CPRC minutes, a “party who wishes not to file, or to file in part only, will have to seek an order to that effect before the deadline for filing”. Such orders will be known as “filing modification orders” (FMOs) and will be sought through “a relatively informal process as part of the trial or hearing, where appropriate”.

The CPRC’s sub-group has proposed that the pilot begin to operate in October, initially only in specific parts of the High Court – the Commercial Court, London Circuit Commercial Court and the Financial List. However, it said there is “necessary policy and legal related work” for the Ministry of Justice (MoJ) to complete before the pilot can be implemented, and the text of the pilot is not publicly available at present.

The proposed pilot is the latest development in relation to non-party access to documents, following on from controversial proposals put forward last year, which would have substantially amended the Civil Procedure Rules (CPRs) had they been implemented.

Under the proposed pilot, the CPRs would be unchanged, and the pilot would stand alongside existing rules in the CPRs. Those existing rules generally enable non-parties to request from the court copies of statements of case and public orders and judgments, and to inspect trial witness statements during trial once the maker of the statement has used it in court. The CPRs also allow for non-parties to make an application to court for other categories of documents.

Jones said: “The pilot proposal is built on principles established in case law via the 2019 ruling by the UK Supreme Court in the case of Cape v Dring. This means that it relates to those documents which are considered necessary for a third party to understand events at a public hearing that has taken place, including: written submissions and skeleton arguments; witness statements and affidavits; expert reports; and other documents, which could include contemporaneous documents, that have been placed before the court and referred to during the hearing. We understand that exhibits to witness statements and affidavits will not generally have to be made available, though exhibits to expert reports may need to be provided.”

“In addition to the documents mentioned above, it has been reported that other documents that the judge considers critical to an understanding of the hearing will also be in-scope of the pilot – a category on which there may be some debate given the court discretion involved,” she said.

“Given the pilot’s basis largely in the existing common law, on one view it will not significantly expand the scope of court documents accessible to non-parties. However, under the existing Cape v Dring position, a non-party wishing to access many of the documents covered by the proposed pilot would have to make an application to court, which would then consider whether granting the request would further the open justice principle and weigh any countervailing factors. The new approach also shifts the costs of making documents available onto the parties, when previously non-parties would likely be expected to cover the reasonable costs of access being given,” Jones said.

“While it will be possible for parties to ask judges to make a FMO permitting certain material to be withheld from filing or redacted before filing, it seems likely that the courts will consider the granting of such orders to be the exception to the rule,” she added.

Speaking about the pilot at a recent event, Mrs Justice Cockerill reportedly said that FMOs may be made to protect “genuinely confidential” material, but that judges will “take some persuading that a document read out in court should be subject to” such an order.

Aldwinckle said the proposed pilot has the potential to create more procedural work that will add cost to litigation.

“The idea that documents should be readily accessible in cases of public interest is understandable and accords with the principle of open justice, which is a central tenet of litigation in England and Wales,” said Aldwinckle. “However, for some cases these changes may create additional work without necessarily delivering associated practical benefit.”

“Despite the relatively limited scope of the proposed pilot, these changes will make some commercially sensitive information more readily available. In the longer term, and particularly if the pilot is rolled out more broadly, it may encourage some businesses to resolve disputes outside the courts, such as through arbitration or mediation. Saying this, some parties may use this increased transparency to their advantage, for example to leverage concerns about publicity and thereby encourage settlement,” she said.

“In the meantime, businesses that are party to litigation to which the pilot will apply should consider its implications carefully with their legal advisers. For example, in some circumstances they may wish to revisit the content of documents which are to be put before the court; or consider whether there are documents in respect of which, at the appropriate time, they might wish to seek a FMO and, if so, the legal and evidential basis for doing so,” Aldwinckle said.