Appeal restores restrictions on non-parties' access to trial documents

The Asbestos Victims Support Group, which campaigns on behalf of those suffering asbestos-related diseases, had obtained an order granting it access to an "unprecedented" amount of material from a dispute between a manufacturer of asbestos products and insurers of companies which had been held liable for their employees' exposure to asbestos dust.

The Court of Appeal, in a unanimous judgment, has now set aside that order. Its judgment also provides a useful restatement of the principles governing a non-party's limited right to obtain copies of documents filed in court proceedings under rule 5.4C of the Civil Procedure Rules (CPRs).

"This decision will come as a relief to many parties litigating sensitive matters," said commercial litigation expert Michael Fenn of Pinsent Masons, the law firm behind Out-Law.com. "These may include matters involving commercially sensitive information or those in which a regulator or law enforcement may take an interest. The breadth of the original order had caused some alarm."

"It remains important, however, to think carefully about the inclusion of confidential or sensitive information in statements of case and applications; as well as in documents such as trial witness statements, expert reports and counsel's skeleton arguments which may become open to inspection by third parties as a result of their deployment in the course of a public hearing. It may also be important to take steps to protect documents by way of applications to the court that they should not be available for inspection, and/or that hearings take place in private," he said.

The power of the court to grant access to documents from court records to a non-party to a case is contained in rule 5.4C of the CPRs. The right is broadly limited to "copies of statements of case and judgments or orders given or made in public, but not until an acknowledgement of service or defence has been filed". However, rule 5.4C(2) permits the court to grant access "from the records of the court" to "any other document filed by a party, or communication between the court and a party or another person".

The Asbestos Victims Support Group had applied to the court for access to all documents used at or disclosed in relation to a trial about asbestos-related damages, which had been settled after trial but before judgment was handed down. Master McCloud, who was not involved in the original trial, granted access to witness statements, expert reports, transcripts, hard copy disclosed documents, written submissions and skeleton arguments and statements of case.

The manufacturer appealed. It argued that the court had "no jurisdiction" to make an order of the "unprecedented breadth" of that made by Master McCloud. She had considered that the 'records of the court' referred to by rule 5.4C(2) incorporated all documents filed with the court, including trial bundles and documents, such as skeleton arguments and transcripts, held with them. The manufacturer's view was that only "formal documents filed, documents generated during the proceedings and correspondence with the court which is held by the court" could properly be regarded as being part of the records of the court.

Lord Justice Hamblen, giving the judgment of the Court of Appeal, said that the purpose of the relevant provisions of the CPRs was to "[give] effect to the principle of open justice". However, open justice does not require non-parties to have access to the full trial bundle. Trial bundles "routinely include a large number of documents which are never referred to at trial but are included on a precautionary basis", he said.

"In my judgment, [the manufacturer's] core submission is correct," he said. "The 'records of the court' are essentially documents kept by the court office as a record of the proceedings, many of which will be of a formal nature. The principal documents which are likely to fall within that description are those set out in in [another rule of the CPRs listing the documents which parties to litigation may obtain from "the records of the court"], together with 'communication between the court and a party or another person'," he said.

This will include a list of documents, but not the disclosed documents themselves; and may include witness statements and exhibits filed in relation to an application notice or Part 8 proceedings, but not usually witness statements or expert reports exchanged by the parties in relation to a trial. It will also not include trial bundles, trial transcripts, nor, generally, trial skeleton arguments or opening or closing notes or submissions, he said.

The Asbestos Victims Support Group was also unable to rely on the court's "inherent jurisdiction" to obtain access to the documents sought, Lord Justice Hamblen said. Open justice "requires that the public have the same opportunity to understand the issues in a case as they would have had if the openings had been given orally", but does not extend to allowing non-parties access to trial documents generally, he said.

He accepted that there was inherent jurisdiction to allow non-parties to inspect statements of witnesses, including experts, whose evidence stands as evidence in chief at a trial. He also accepted that there was inherent jurisdiction, "based on current civil court practices", to give inspection of other documents which are read out in open court; documents which the judge is invited to read in open court; documents which the judge is specifically invited to read outside court; and documents which it is clear or stated that the judge has read.

These were "all documents which are likely to have been read out in open court had the trial been conducted orally," he said. 

Skeleton arguments read by the court would also potentially be open to inspection, "provided that there is an effective public hearing in which the documents are deployed," he said. Finally, there might, Lord Justice Hamblen accepted, be some specific documents which it was "necessary for a non-party to inspect in order to meet the principle of open justice."

The Court of Appeal decided to set aside Master McCloud's order in full, as "there are so many problems raised by the terms in which the order was made". However, Lord Justice Hamblen suggested that the parties come to an agreement on the terms of an order which "reflects the categories of the requested documents which there is a right to inspect".

In light of the guidance given by the Court of Appeal, parties "particularly concerned about privacy" may wish to consider and specify in their contracts confidential ways of resolving disputes, such as arbitration or mediation, Michael Fenn said.

"On the other side of the coin, we are often asked by clients to try to obtain information about disputes to which they are not a party, but which are related in some way to another dispute or issue they have," he said. "This decision confirms that the scope for doing so is subject to limits. A successful application for documents by a non-party requires careful navigating of the applicable principles and adherence to the proper procedure."