Access to Court documents by an Interested Non-Party

Posted by Sam Mason on
A High Court master has recently given extensive guidance in the case of Dring v Cape Distribution Ltd and others [2017] on the right of an interested non-party to access court documents. The master permitted Mr Dring, an interested non-party, access to a wide variety of documents relied on at a trial including witness statements and exhibits, disclosed documents in paper bundles, expert reports, transcripts, written submissions, skeletons and statements of case.

The Civil Procedure Rules and relevant legal principles

CPR 5.4C allows certain documents filed at court to be accessed by non-parties (ie. those not involved in the proceedings). Whether a request requires the court's permission or not will depend on the type of document that the non-party is seeking to obtain.

CPR 5.4C(1) entitles non-parties to access statements of case (eg. Particulars of Claim, Defences and Replies) without the permission of the court. However, a party to the proceedings or any person identified may apply for an order restricting access (CPR 5.4C(4)) to documents. Such applications are usually made where the documents to be filed contain sensitive or confidential information.  

Access to documents other than statements of case is governed by CPR 5.4C(2), which entitles a non-party to obtain a copy of any other document filed by a party or communications between the court and a party or another person, only with the permission of the court. As such, any documents filed on the record of the court fall within the scope of CPR 5.4C(2).

Documents filed on the record of the court and which are read, or treated as read, are subject to a default position in favour of the principle of open justice where the applicant requesting them has a legitimate interest. The Court must balance this principle against any harm that may arise to other parties' legitimate interests when deciding whether to grant permission for that document to be accessed.

Where documents are removed from court, the court can require them to be returned.

Documents on the record which are not treated as read are subject to a more stringent test, namely that there must be strong grounds for thinking that access is necessary in the interests of justice.

Served documents not on the records of the court do not fall within CPR 5.4C but may be disclosed under the court's common law powers.

Court bundles are part of the records of the Court whilst they remain within the Court's possession.

The Case

Mr Dring, an interested party in the original proceedings, sought access to documents which had been in court for the purposes of a trial about what was known of the product safety of asbestos by a manufacturer of the product, Cape (and its connected companies). The trial took place but a settlement was reached out of court before judgment was delivered.

Cape opposed Mr Dring's application on various grounds, including that Mr Dring had no legitimate interest supporting his application, the principle of open justice was not engaged in circumstances of a settled case, the public should not have rights greater than the parties themselves, trial bundles were not documents "filed" by a party and that skeletons and submissions were not documents on the court record and an electronic bundle was not a "filed" bundle.

In giving judgment granting permission for Mr Dring to have access to documents that were in the paper bundles relied on at trial, the master relied heavily on the right of access to court and openness of justice being inherent in the rule of law. It was held that these rights foster the scrutiny of the courts by the public, protect the integrity of the court process and assist the development of the law and legal knowledge, thereby supporting the effectiveness of the right of access to court. Cape's argument that the principle of open justice was not engaged where a case has settled was also rejected. However, the master did accept that electronic bundles were not "filed" and so refused access to them.

Conclusion

The openness of the court is inherently enshrined in the law of England and Wales as a democratic society. Whilst applications made under CPR 5.4C will have to be considered carefully and will be fact specific, the judgment in Dring would seem to be a significant judgment for non-parties to rely on when applying for access to a wide range of documentation filed on the record of the court. This judgment may also see a rise in early applications from parties for the Court file to be sealed in an attempt to restrict third parties from having access to documents. 

About the Authors

Sam is a Trainee Solicitor in the Commercial Litigation team based in Cardiff, seconded from the National Assembly for Wales Commission.

Sam Mason
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029 2068 6157

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Joanne is a Senior Associate in the Cardiff Litigation and Dispute Resolution Team with extensive experience of advising private, public and education sector clients on a wide range of commercial and corporate disputes, including procurement challenges, judicial reviews, breaches of contract, negligence, nuisance, defamation and breaches of confidence and non-compete/restrictive covenant clauses.

Joanne Thompson
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029 2068 6133

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