Having taken a close look at transparency in litigation before the Unified Patent Court in our first article of a three-part series we now look at the point from the perspective of the courts of England & Wales.
Open justice is a core principle of the legal system of England & Wales. As said by Lord Hewat CJ in R v Sussex Magistrates, Ex p McCarthy [1924] 1 KB 256, 259:
"... it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done"
The relevant rules governing the provision of litigation documents to non-parties are set out in the Civil Procedure Rules. Particularly, Civil Procedure Rule 5.4C states:
"(1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of –
(a) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it;
(b) a judgment or order given or made in public (whether made at a hearing or without a hearing), ...
(2) A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person."
On the face of it, this appears to provide the Court with a broad power to allow a non-party to obtain copies of documents.
Given the importance of the proper functioning of open justice it is the highest court of England & Wales, the Supreme Court, which has provided the most significant guidance on the operation of this rule in the case Cape v Dring [2019] UKSC 38.
The case concerned an action involving Cape Intermediate Holdings Ltd's liability for the manufacture and supply of mesothelioma-causing asbestos. Voluminous documentation was produced for the trial and the case settled before a judgment was delivered. The Supreme Court judgment concerns a subsequent application by the Asbestos Victims Support Groups Forum UK (which was not a party to the underlying claim) to obtain copies of all the documents used at or disclosed for the trial, including the trial bundles and transcripts. Given the expansive nature of this request the decision should be treated with some caution when applying the principles to more nuanced requests.
The issues arose because all the material sought was not necessarily "filed" with Court, nor on the "records of the court" (see the language used in Civil Procedure Rule 5.4C(2)).
The Supreme Court clarified that all the Courts of England & Wales have an inherent jurisdiction to determine what the principle of open justice requires in any given case. The Courts' rules are therefore not determinative. The principal purposes of the open justice rule was described as being two-fold: (1) to enable public scrutiny of the way in which courts decide cases, essentially to enable the public to have confidence that judges "are doing their job properly"; and (2) to enable the public to understand how the justice system works and why decisions are taken. For this the public needs to understand the issues and evidence adduced in support of the parties' cases.
In making its decision the Supreme Court reflected on the fact that historically the general practice had been for arguments and evidence to be placed before the Court orally i.e. read out, whereas the modern practice is for there to be a significant amount of material which is reduced into writing before a hearing takes place. This means that the public simply might not know what is going on without access to those written materials.
Despite these core principles, the Court will not order access to trial bundles as a matter of right. The applicant will need to explain why the information is sought and how it advances the open justice principle and there may be some reasons for denying access e.g. national security or the protection of privacy interests or confidential information (and the Courts of England & Wales are well practised in properly scrutinising claims of confidentiality in documents). Also relevant are the practicalities and proportionality of fulfilling a request for documents.
In light of the circumstances the Supreme Court's order largely affirmed the Court of Appeal's decision to allow access to certain statements of case including requests for further information and answers, certain witness statements, expert reports and submissions.
The question of whether access should be granted to other documents in the trial bundles was remitted back to the High Court. The High Court held that it would not be appropriate to do so because the reason for wanting the documents (including in relation to other litigation) did not advance the open justice principles. The documents were not required to understand the proceedings and the applicant already had the parties' expert reports and opening and closing submissions.
The Court of Appeal has recently addressed another request for access to Court documents by non-parties (Hopcraft v Close Brothers Ltd [2024] EWCA Civ 634). Applications were made by two car finance companies who sought copies of court documents from a claim to which they were not a party, for use in similar proceedings against them. The stated purpose of seeking the documents was to decide whether they should stay their own similar claims pending the outcome of related appeals. The documents had not been read or referred to in open Court. The Court of Appeal granted the request for documents but applied restrictions on the use that could be made of them. Full details of this case were recently reported in our LoupedIn blog post.
Where does this leave things in England & Wales?
Documents on the "records of the Court" – access governed by the Civil Procedure Rules
- Statements of Case (i.e. the claim form, particulars of claim, defence, reply, counterclaims and responses to "Part 18" requests for further information) - these are typically available on the Court's electronic filing system, CE-File, and can usually be obtained on payment of a fee. In some cases (where there are exceptional circumstances) a party may have made a successful application to restrict access to the Court file, in which case they would not be readily available.
- Court Orders – for court orders made public, the situation is as above and these documents are generally available via CE-File on payment of a fee.
Documents potentially not on the "records of the Court" – access governed, largely, by the Court's inherent jurisdiction
- Witness statements –These are not necessarily treated as being records of the Court however the Court has an inherent jurisdiction to order the provision of witness statements which have been relied on at a hearing. For witness statements which stand as evidence in chief (which applies when the witness is called to give oral evidence) there is additionally a specific procedural rule which dictates these are generally available for inspection during the course of a trial (Civil Procedure Rule 32.13).
- Expert reports – It is expected that requests for expert reports should be handled in the same way as for witness statements.
- Transcripts – These are available, on payment of a fee, for any hearing in the High Court which has been recorded, unless the hearing has been heard in private in which case the Court would need to make an order for access to be provided (Civil Procedure Rule 39.9).
- Skeleton arguments – Under the inherent jurisdiction of the Court, on an application by a requesting party, these may be provided in the interests of open justice.
- Disclosure documents – Until read to or by the Court, or referred to during a public hearing a party to whom a document has been disclosed can only use that document for the purposes of the proceedings in which it is disclosed. Once disclosure documents are read or referred to at a hearing that limitation does not apply and a document at that stage is arguably available to a non-party, unless a party obtains a "31.22" (named after Civil Procedure Rule 31.22) Order prohibiting the wider use of the document.
- Trial bundles (potentially containing documents in categories other than those described above) – As per the High Court decision in Cape v Dring access to these documents will not be provided automatically and an applicant wishing to obtain such documents will need to provide evidence as to how the principles of open justice will be advanced.
Any reliance on the Court's inherent jurisdiction will require an application to be made (with supporting evidence as to how the principle of open justice is furthered) assuming the documents are not provided voluntarily. As part of the consideration of any such application the Court will likely distinguish documents which have been read in open court, and those which are available to the Court but have not been read. Those latter documents may be more difficult to obtain. Further, although one of the principles of open justice is to ensure that there is proper scrutiny of the judicial process, a third party seeking historic records (i.e. from proceedings that have been finalised) may need to argue more robustly in seeking production of those documents.
Changes to access to court documents in England & Wales?
Following the decision in Cape v Dring, and in the context of the Lady Chief Justice's broader agenda of looking at transparency issues, in February 2024 the Civil Procedure Rule Committee (CPRC) issued a consultation on proposed changes to rules on the supply of documents to non-parties (CPR 5.4(C)). The proposed changes would provide wider access to documents without having to rely on the courts' inherent jurisdiction, including allowing non-parties access to skeleton arguments, witness statements and affidavits and expert reports. In each case, the party that filed the document (rather than the court) would be responsible for providing a copy of the document. While those proposed changes garnered some criticism from practitioners during the consultation, and the CPRC has paused further work on the project until autumn 2024, it is worth noting that the regime in the courts of England & Wales may be tending towards granting greater access and transparency to non-parties.
Key takeways
Open justice is a fundamental facet of litigation before the courts of England & Wales. Civil Procedure Rule 5.4C governs non-parties' access to court documents on the record, generally allowing access to statements of case, public judgments and orders (subject to confidentiality restrictions), with the courts' inherent jurisdiction being the basis for obtaining other documents.
In Cape v Dring, the Supreme Court emphasised the courts' inherent jurisdiction to determine open justice requirements, highlighting the necessity of public scrutiny and understanding of the justice system.
The Court of Appeal has recently confirmed, in Hopcraft v Close Brothers Ltd, that in a case where parties have a legitimate interest in obtaining the documents sought, advancing open justice would be achieved by granting such access (even when they have not been read or referred to in open court).
Proposed Civil Procedure Rules changes aim to enhance transparency by granting non-parties wider access to documents without having to rely on the courts' inherent jurisdiction.
Read the original article on GowlingWLG.com
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