Non-party access to court documents

Until fairly recently, the matter had received only limited consideration in Scotland, however, the position there appears to be similar although there are fewer court rules covering the situation and much will depend on the nature of the document sought and the identity of the party seeking it.

Documents a non-party can access without permission of the court

Without needing court permission, non-parties can generally access:

• statements of case;
• orders and judgments; and
• trial witness statements.

A statement of case is a document which explains a party's case, and includes the claim form, particulars of claim, defence and any reply, as well as any further information provided between the parties as a result of requests for information. A non-party's right to obtain a copy of a statement of case does not however extend to documents filed with or attached to that statement of case.

Orders and judgments are the court's decisions on issues of substance and procedure in the litigation. If made on a public basis, whether at or without a hearing, these will be accessible to non-parties.

However, statements of case, orders and judgments can generally only be accessed once all defendants in the case have filed an acknowledgment of service or a defence.

Non-parties also generally have a right to inspect witness statements prepared for trial during the trial, once the maker of the statement has used it in court. If the non-party wants access to the witness statement after trial, they must ask the court for permission.

The growth of electronic filing of court documents and electronic resources which scan for filings at court makes the practical process of obtaining access to these types of documents ever more straightforward. A fee may be payable to the court for accessing some documents.

Parties will only be able to prevent access to these documents by making an application to the court. For example, a party can seek an order restricting access to documents on the court file, sometimes described as an application to 'seal' the file, or ask the court to make an exception to the rule permitting inspection of witness statements during trial.

However, the fact that details in the statements of case or witness statements may be embarrassing or provide some advantage to the non-party is unlikely on its own to persuade the court to restrict access. An application to restrict access has a better chance of success where the objecting party can demonstrate that access is likely to involve revealing a trade secret or highly sensitive confidential business information.

A non party can also obtain a transcript of everything that was said in open court.

Documents a non-party can access with permission of the court

The court has discretion to allow access to documents:

• which form part of the formal 'records of the court'. This may include, for example, certain applications made by parties; or
• which have been placed before the court and referred to at a public hearing.

The second category - documents placed before the court and referred to at a public hearing - may include, but is not limited to:

• witness statements and experts' reports which were used at trial and which would have been available for inspection during the course of the trial;
• documents which have been read out in open court, the judge has been asked to read either in court or in private, and before, during or after trial, or which it is clear the judge has read;
• skeleton arguments, written submissions and other advocates' documents provided to the court such as chronologies, which have been used in a public hearing;
• other documents referred to which it is necessary for a non-party to see to meet the principle of 'open justice'.

Access will not be granted to trial bundles which have been marked up by the court, parties or others, without the consent of the person holding them.

Although the court has the power to allow access a non-party has no general right to be granted access to documents held on the court file, except in the cases already discussed. The courts in the UK place great weight on the importance of the principle of open justice - principally, to enable public scrutiny of the way in which courts decide cases and to enable the public to understand how the justice system works and why decisions are taken. Nevertheless, it is still for a non-party seeking access to explain why they seek it and how granting access will advance the principle of open justice. A fishing expedition where access is sought simply to review a court file for any documents which may assist them in whatever they are seeking to pursue is unlikely to meet this test.

When deciding whether to grant permission the court will balance the non-party's reasons for requesting access against the interests of the parties to the litigation. Examples of good reasons for denying access include national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality.

The practicalities and proportionality of granting such a request will also be relevant and the non-party who seeks access will be expected to pay the reasonable costs of granting that access.

A non-party seeking the court's permission to access court documents will have to make a formal application and pay a court fee. They may make the application without giving notice to the parties to the litigation, but the court may direct that notice must be given to anyone who would be affected by its decision.

What does this mean for you?

Think carefully about the inclusion of confidential or sensitive information in statements of case, as well as in documents such as witness statements, expert reports and counsel's skeleton arguments, and in court bundles, which may be read out or referred to in open court and so become open to inspection by non-parties. It may also be important to take steps to protect court documents by way of applications to the court that they should not be available for inspection and/or that hearings take place in private. These issues should be considered, and any appropriate applications made, at the earliest possible stage.

If you are particularly concerned about privacy you should consider alternative ways of resolving your disputes, such as arbitration or mediation, which are private.

Non-parties seeking access to documents held on a court file should do so sooner rather than later. It may be easier for a party to argue against such access after the proceedings have come to an end.