The Supreme Court case of Cape Intermediate Holdings Ltd v Graham Dring (for and on behalf of the Asbestos Victims Supports Groups Forum UK) [2019] UKSC 38 clarified the approach to be taken towards a non-party’s access to court records under Civil Procedure Rule 5.4C. It also examined the jurisdiction the court has in assessing how the principle of ‘open justice’ should be interpreted and balanced against the risk of harm to legitimate interests. The case was remitted back to the lower courts to decide to what documents the Asbestos Victims Supports Groups Forum UK (AVSB) were entitled. On 16 July 2020, the Court decided that the AVSB could only have the documents identified by the Supreme Court. AVSB is therefore entitled to see written submissions prepared for the court, witness statements and expert reports (where relevant) but not the entire trial bundle or all the disclosure made in the litigation.

The original proceedings, settled between trial and delivery of the judgment, concerned the appellant’s alleged negligence in its manufacture of asbestos. AVSB sought to rely on the provisions of r.5.4C in order to obtain copies of all documents disclosed by the Cape Intermediate Holdings Ltd, in the belief that they would contain information about the asbestos industry’s knowledge of its dangers.

Interpretation of r.5.4C(2)

R.5.4C(2) appears to provide the court with a broad power to allow a non-party to obtain copies of  "any other document filed by a party, or communication between the court and a party or other person" that is kept in the records of the court, but the CPR does not define the exact scope of the court’s power to order access to those records as each case must be decided on its own merits.

One relevant consideration is that the purposes for which records are kept by the court may be entirely separate to the purposes for which non-parties should be granted access.

Principle of open justice and protecting risk of harm to legitimate interests

The Supreme Court focussed on how the Court should interpret the principle of ‘open justice’ and how that may influence public access to case materials. It was held that the default position should be that the court can permit public access to the parties’ written submissions, as well as the documents placed before the court and referred to during the hearing. However, an applicant has no inherent right to be granted such access and must prove how the disclosure of the materials would advance the open justice principle.

The court will then assess how disclosure would advance open justice against any risk of harm the disclosure may potentially cause to the legitimate interests of another, taking practicality and proportionality of granting the request into consideration. The Court will also consider the interests of national security, the protection of children and other vulnerable individuals, the protection of trade secrets and commercial confidentiality. In some circumstances disclosure will not be ordered or it will be very tightly-controlled.

The Court advised that applicants should make disclosure applications during trial and would be expected to pay the reasonable costs of access.

Implications of this case

This case confirms that the CPR as to public disclosure of material should not be considered in isolation or interpreted too narrowly; the principles of open justice and harm to legitimate interests will remain at the forefront of the Court’s decision-making process

On the one hand, this case will be a positive one for those non-parties who may now feel more able to approach the courts with disclosure requests. On the other hand, a rise in requests for disclosure may result in further time/financial strain on an already over-burdened court system.

Parties to litigation will need to take care about what is put in written submissions, witness statements and expert reports, which could be disclosed quite widely, particularly where the case is highly contentious or sensitive.

How can Capsticks help? 

 We are experts in bringing, and defending, civil litigation and can assist you (as a non-party) to make an application for disclosure from the Court if you have a legitimate interest in documents being used in a court case. It may be possible to secure disclosure without the need for an application to Court such as through the use of a confidentiality ring, which can be an effective tool to achieve a balance between the need for appropriate disclosure and the need to protect parties’ confidentiality. 

Please contact Jane Barker for more information.