England postpones decision on proposed non-party access to court documents rule

The CPRC’s proposed new drafting of rule 5.4C of the Civil Procedure Rules (CPR) sought to make more documents filed at courts in England and Wales available to non-parties ‘as of right’, without the need for the non-party to make an application to the court and explain why giving it access to those documents would further the ‘open justice’ principle.

The consultation process, launched earlier this year, closed on 8 April. According to recently released minutes (9-page / 188MB PDF) of a CPRC meeting held on 7 June, progress on the proposed plan has been paused.  The minutes state that this will allow the new Transparency and Open Justice Board, created in April by the Lady Chief Justice to promote transparency and open justice in the English courts, to conduct the first phase of its work.

In minutes of a previous CPRC meeting held on 10 May (18-page / 315MB PDF), the CPRC said: “Everyone agrees with the principle of open justice, however, the detail requires further consideration.”

As a result, further developments on the terms of CPR 5.4C are unlikely until at least later this year.

At present, some documents - mainly court orders and statements of case - are available to non-parties simply on request to the court, but obtaining most documents requires an application.  Non-parties who seek such documents may include, for example, media representatives, parties to related disputes, or simply other individuals or businesses who take an interest.  Under the CPRC’s proposed re-drafted rule, non-parties would be able to obtain, on request, documents including skeleton arguments, expert reports, witness statements and affidavits, even before these are used in a hearing - and even if they are never used.

If the proposed changes are implemented, requests for such documents could be made at any time after an early stage in the proceedings - in broad terms, once the defendants have filed acknowledgments of service. The only exception to the ready availability of these documents would be if the party which filed the documents had previously made a successful application to the court to restrict their availability to non-parties. As a result, parties may wish to make applications requesting restricted availability more often than they do now.

Getting the balance right

Ensuring the ‘right’ approach to changing CPR 5.4C is important as the rule engages the delicate balancing exercise between the open justice principle – a central tenet of litigation in the English courts – and parties’ concerns about exposing commercially or personally sensitive information if they litigate their disputes through the courts. 

It would be unfortunate if changes to the rule were to discourage parties from litigating in England and Wales. Any changes must also avoid creating their own new set of uncertainties or imposing unjustifiable additional costs burdens on parties. It is therefore welcome that the CPRC has apparently taken the consultation feedback on board and that there will be further reflection and work done before any changes are made.

The current rules on non-party access to documents have given rise to uncertainties over the years so revisiting them is a worthwhile exercise. Even so, we have seen examples of the current rules working well to strike a balance between open justice and the protection of parties and individuals, and it is important to ensure that, under any revised rule, the court is able to continue this balancing act.

The CPRC’s re-draft of the rule considers the possibility that parties could proactively make applications for restrictions to be placed on non-party access to documents on the court file for a matter, pre-empting the making of a request for such access - this step is also available to parties under the current rules. While the ability to make an application for restrictions to be placed on access to the court file is a valuable tool, if the rule were re-drafted as proposed by the CPRC, parties may make these applications more often. This could increase costs and complexity in litigation procedure in the English courts, which is already an involved process.

While it is currently unclear when changes to the current rule, if any, will be made, businesses involved in or considering litigation should keep a close eye on developments in this area. It is important that any changes which are introduced are done so with sufficient lead time and transitional provisions in place so that businesses can consider any steps they may need to take to protect their confidential information in the context of litigation, including potentially making applications to restrict access to the court file.

Co-written by Kate Aldwinckle of Pinsent Masons.