High Court provides clarity on third-party access to court documents

The decision helps clarify how an earlier UK Supreme Court decision in the same case will be applied in practice. The judge said a third party wishing to gain access to documents referred to during a trial needs to demonstrate that the granting of access will actually advance the principles of open justice by enabling others to better understand the proceedings.

The judgment is the latest stage in a dispute between campaigners at the Asbestos Victims Support Groups Forum, represented by Graham Dring, and asbestos manufacturer Cape Intermediate Holdings.

The campaigners had obtained an order in 2017 granting them access to a significant volume of material generated during a dispute between Cape and insurers of companies which had been held liable for their employees' exposure to asbestos dust.

In 2018, the Court of Appeal set aside that order, limiting the Forum's access to the ‘records of the court’ provided for in rule 5.4C of the Civil Procedure Rules (CPR), which gives the court the power to grant access to documents from court records to non-parties to the case, and certain other documents, focusing on those which the judge has read or been asked to read.

Both Dring and Cape appealed the Court of Appeal’s decision, arguing that the order granted was too narrow and too broad respectively. The Supreme Court technically dismissed both appeals, ordering the Court of Appeal’s order to stand. The result was that Dring remained able to access statements of case, written submissions, witness statements and expert reports, but that its application for additional documents was referred back to the trial judge. The trial judge would have to decide, based on his inherent jurisdiction to allow access to other documents placed before the court and referred to at trial, as explained by the Supreme Court, whether Cape should be required to provide copies of any such additional documents to Dring.

Ruling on that question, Mr Justice Picken said the campaigners should not have access to the documents. He said the Forum was not trying to advance the open justice principle, but was “simply trying to obtain documentation for deployment in other litigation”.

Litigation expert Michael Fenn of Pinsent Masons, the law firm behind Out-Law, said: “The decision will be welcomed by parties who want to litigate their disputes, but are concerned about the confidentiality of their commercially sensitive information and the risks of information being released to the public as a result of court proceedings.

“An aspiration to use documents in other litigation will not, in itself, be considered a good reason for providing access to a non-party. As was noted by the court, prospective litigants are expected to use established disclosure procedures, including making third party disclosure application requests, rather than circumvent the disclosure rules by obtaining access to documents referred to in other proceedings,” Fenn said.

“However, it remains the case that certain court documents, such as statements of case, written submissions, witness evidence and expert reports will usually be made available to non-parties, and that particular groups, such as the media, will often be well placed to demonstrate a good reason for seeking more general access to the documents held by the court,” Fenn said.

“Those concerned about confidentiality should therefore continue to take advice on ways of protecting their confidential information during litigation, such as by establishing a confidentiality club or ring, or by using less-public methods of dispute resolution such as arbitration or mediation,” Fenn said.