Access all areas? Proposed changes to non-party access to court documents

The Civil Procedure Rule Committee (CPRC) has launched a consultation on expanding the types of document that non-parties can obtain from court records in England and Wales. 

The current rule, CPR 5.4C, allows non-parties to obtain statements of case (excluding accompanying or attached documents) and judgments or orders (if given or made in public) from the court without permission, subject to certain exceptions. However, the Supreme Court in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 suggested that this rule may not be fit for purpose and that changes may be necessary to enable the public to better understand how the justice system works and why decisions are taken. 

The CPRC has responded by proposing that, in addition to statements of case and judgments or orders, non-parties may also obtain the following documents without permission (and unless the court orders otherwise in a particular case): 

• skeleton arguments;
• witness statements (excluding exhibits or annexures); and
• expert reports (except medical reports or where a rule or practice direction provides otherwise).

Lord Justice Birss has described the changes as “reasonably modest in text, but reasonably significant in nature” and they would materially increase the amount of information that non-parties currently have access to. 

These changes are at the consultation stage only and there are a number of issues to work through. It is not clear, for example, how the changes are intended to interact with the collateral use restrictions on disclosed documents and witness statements. Nor at what point during the litigation process (or for how long after the litigation has concluded) documents can be accessed, or whether the changes will have retrospective effect (allowing access to documents added to the court records under the current, more restrictive regime).

However, if introduced, the changes could have a number of far-reaching impacts, including:

• exposing the written evidence of witnesses and experts to greater public scrutiny and potentially raising additional publicity and reputational concerns for the individuals involved;
• increasing the body of material on which expert witnesses can be cross-examined (particularly if they have opined in previous cases on a similar subject matter);
• adding to the administrative burden on parties and lawyers at trial or hearings, and on the court system generally, to field and answer requests for documents;
• increasing applications by parties for additional restrictions to be placed on certain documents; and
• potentially allowing access to a vast pool of additional data on which generative AI tools can be “trained” for purposes such as predicting case outcomes and assessing the strengths and weaknesses of adducing certain facts and making certain arguments. 

The consultation is open until 8 April 2024, at which point the CPRC will review the feedback before reaching a final decision on any changes to the existing rules. Watch this space for further developments.