You can’t always get what you want. But if you try you might find you get what you need

06 August 2020

“Open justice” is a fundamental principle of the English judicial system. In R. (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates' Court [2012] EWCA Civ 420, Lord Justice Toulson, described it as “a principle at the heart of our system of justice and vital to the rule of law”.

The purpose of this policy is to enable the public to scrutinise the judicial decision-making process and, more generally, to understand how the justice system works by making it as transparent as possible. Litigation is therefore conducted in public unless there are strong reasons why justice would be better served by a private hearing.

The principle of open justice extends to allowing third parties to obtain certain types of court documents. On the one hand, this can cause problems for litigants who may wish to ensure that confidential commercial material is not reported in the press or made available to competitors. On the other hand, the ability to obtain court documents can be very useful for parties who are considering bringing a claim, which is similar or related to another matter that is already before the Court. This is common, for example, in banking and finance litigation, where disputes arise out of widely used, standard form, documentation and, in the current economic climate, where single events (such as the collapse of Lehman Brothers in the last economic downturn) can lead to disputes between a number of different parties.

This note outlines the steps that a non-party can take in order to obtain court documents. It also addresses the steps which a party to a dispute can take to keep those documents confidential.

In summary:

  • The Civil Procedure Rules (CPR) contain a mechanism for non-parties to obtain documents from the “records of the court”. Where statements of case and court orders are sought, this is a relatively straightforward administrative process, which does not require a formal application, unless the parties to the dispute have made a successful application to restrict access to the court file (which will be relatively rare). An application will need to be made for access to other types of document on the court file; and
  • not all types of documents prepared for use at trial are treated as being “records of the court.” Skeleton arguments, written submissions, witness statements, experts’ reports and trial bundles, in particular, may not be treated as being on the court file and so would not be available pursuant to an application made under the CPR. However, where these types of document have been placed before the Court and relied upon at a hearing, the Court has an inherent jurisdiction to provide copies to non-parties in accordance with the general principle of open justice.

The relationship between the Civil Procedure Rules and the Court’s inherent jurisdiction

As explained in more detail below, the CPR provide a procedure for non-parties to obtain documents “from the court records”. This will include documents that a court keeps for its own purposes, such as statements of case and court orders. It will not include documents which are lodged at court (for example witness statements for trial, experts' reports for trial, transcripts of hearings, or trial bundles) but which are not retained by the Court on a permanent or long-term basis.

Therefore, it will not be possible for non-parties to obtain all documents generated during a piece of litigation from the court’s records. However, in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38, the Supreme Court made it clear that the Court also has an inherent jurisdiction to provide access to documents where the open justice principle is engaged and that this is not limited to situations caught by the CPR (or to courts where the CPR applies). This means that the Court has the power to require parties to a dispute to provide non-parties with copies of documents that have been referred to at trial (usually subject to the payment of reasonable copying costs).

There are, therefore, two different (but connected) routes for non-parties to obtain documents created by others for use in litigation: (i) obtaining documents under CPR 5.4(C), which is relatively straightforward (at least where statements of case and court orders are sought), but which is limited to records of the court; and (ii) the Court’s inherent jurisdiction, which is not limited to court records but which is only available where documents have been placed before the Court in a public hearing and which will require a formal application to the Court.

Obtaining statements of case and orders from the records of the court

Rule 5.4C(1) of the CPR provides that non-parties may obtain copies of statements of case (formerly known as pleadings) and judgments or orders from the court file without the Court's permission. The term “statements of case” includes the claim form, particulars of claim, defence, reply, counterclaims and responses to “Part 18” requests for further information and any amended versions of those documents. Once all the defendants have filed an acknowledgment of service, the procedure for obtaining a copy of these documents is essentially administrative and amounts to filling in a request form and paying the prescribed fee. The Court’s permission is not required1 and there is no requirement for the statements of case to have been referred to at a public hearing. Importantly these requests for documents are made without notice to any of the parties involved in the litigation.

The right does not extend to documents filed with or attached to statements of case. Nor does it extend to other documents aimed at confining the issues, such as notices to admit and responses to notices to admit (Various Claimants v News Group Newspapers Ltd [2012] EWHC 397 (Ch)). One way to restrict public access to confidential information may be to put any particularly sensitive material in a schedule to a statement of case. However, given the importance of the open justice principle, judges are likely to be wary of any attempt to abuse this rule and, where the circumstances justify it, the safer approach may be to make an application to restrict access to a statement of case (see below). In any event, third parties can still make an application to obtain other documents filed with a statement of case (see below).

Applications to restrict access to statements of case

Parties involved in litigation can apply to the Court, under CPR 5.4C(4), to restrict public access to statements of case (but not a judgment or order given or made in public). The Court has broad powers to deal with such applications. It can provide that non-parties may not obtain statements of case but it can also impose more limited restrictions such as requiring documents to be edited or redacted before being provided to third parties, or limiting the persons or classes of persons who are entitled to obtain copies.

However, as it involves a derogation from the principle of open justice, the Court will not restrict access to statements of case lightly. In Various Claimants v News Group Newspapers Ltd [2012] EWHC 397 (Ch)), Vos J held that there is a presumption that third parties (including the press) should be entitled to see statements of case. Therefore, the burden of proof will be on the applicant to persuade the Court that there are exceptional circumstances that justify a derogation from the principle of open justice. The reasons why a third party might want to obtain copies of statements of case are of little or no importance unless they are sought for an improper purpose.

In G & G v Wikimedia Foundation Inc [2009] EWHC 3148 (QB), it was held that restrictions on public access will only be made where they are necessary and proportionate. Furthermore, any such restrictions should be limited to the minimum necessary to protect the relevant material. For example, the Court will not make an order preventing non-parties from obtaining statements of case where sufficient protection could be afforded by redacting or anonymising the relevant documents. 

CPR 5.4C(6) provides that a non-party may, notwithstanding any restrictions that may have been imposed, apply to the Court to obtain an unedited statement of case and most orders imposing restrictions will expressly provide for this. In National Policing Improvement Agency v Total Downstream UK PLC and others [2009] EWHC 943 (TCC), the judge noted that there may be considerations, of which the Court was unaware when making the order, which would mean that at some later date the Court may consider that the documents should be made publicly available. Any application to remove restrictions must be on notice to the party which requested them.

Court orders

As explained above, non-parties are entitled to copies of orders handed down at a public hearing and it is not possible to make an application under CPR 5.4C(4) to restrict public access to such orders. However, it is possible, in exceptional circumstances, to apply under CPR 39.2(3) for a hearing to be held in private, in which case a non-party will need the trial judge’s permission to obtain a copy of an order.

Parties involved in litigation can agree to settle those proceedings by means of a consent order, which would generally be available to a third party under CPR 5.4C(1). However, a form of consent order known as a Tomlin Order can be used to keep the agreement confidential. The settlement terms are set out in an attached schedule which does not form part of the body of the order and is therefore not available as of right to members of the public. Recently, in Zenith Logistics Services (UK) Ltd and others v Coury [2020] EWHC 774 (QB), the High Court confirmed that this practice is consistent with the open justice principle.

Other documents on the court file

CPR 5.4C(2) also provides for non-parties to obtain documents other than statements of case (including notices to admit, documents attached to statements of case and correspondence between the Court and the parties) from the court file but this does require the Court's permission. An application under this rule can be made without notice but the Court may direct that notice should be given to any person who would be affected by its decision.

Case law suggests that the following general principles are likely to apply to an application under CPR 5.4C(2):

  • in contrast to the position under 5.4(C)(1) (third party access to statements of case), there is no presumption that disclosure of the requested documents should be permitted;
  • there is a distinction between (1) documents which have been read in open court and (2) other documents which, though filed at court, have not been read by the judge. There are stronger grounds for allowing access to documents falling within the first category. Documents falling within the second category should not be made available as a matter of routine, but only if there are strong grounds for thinking that access to them is necessary in the interests of justice;
  • the Court will be more willing to give a non-party access to documents that relate to ongoing litigation than to documents relating to historic litigation. This is because open justice is primarily concerned with monitoring the decision-making process as it takes place, not with reviewing the process after the event. However, the fact that a piece of litigation has come to an end is not an absolute bar to disclosure of documents from the court file;
  • an applicant must adequately identify the documents, or classes of document it wishes to obtain. CPR 5.4(C)(2) does not entitle the applicant to inspect the whole file or conduct a “fishing expedition”; and
  • the procedure should not in general be used for obtaining documents which are otherwise available from public sources.

In addition, the Court will balance the non-party’s reasons for wanting the documents against the interests of the party that filed the documents in restricting access to those documents. This exercise is likely to be similar to the one undertaken by the Court when considering whether to exercise its inherent jurisdiction (see below).

The Court may order that redacted or anonymised versions of the documents be provided to the non-party or that the documents be provided subject to other restrictions. For example, in HSH Nordbank AG, London Branch v Saad Air (A320 No.2) Limited & anor [2012] EWHC 3213 (Comm), Field J ordered that a third party be provided with a copy of an application for summary judgment and supporting evidence, subject to the third party undertaking only to use those documents for the purpose of related legal proceedings.

Witness statements

Non-parties, who wish to gain access to witness statements that have not been filed at court, may be able to rely on CPR 32.13(1) which provides that:

A witness statement which stands as evidence in chief is open to inspection during the course of trial unless the court otherwise directs”.

The difficulty with this provision is that it is limited to “inspection during the course of trial”. Strictly construed, therefore, CPR 32.13(1) does not appear to give non-parties the right to obtain copies of witness statements that they can take away with them or to have access to witness statements in advance of the trial or after it has concluded. It may, therefore, be preferable for non-parties seeking copies of witness statements to apply for them to be made available pursuant to the Court’s inherent jurisdiction, which is discussed next.

The Court’s inherent jurisdiction

As explained above, not all documents placed before the Court at a hearing will be treated as “records of the court”. Skeleton arguments, written submissions, witness statements, experts’ reports and trial bundles, in particular, may not be treated as being on the court file and so would not be available pursuant to an application made under CPR 5.4(C). However, there is an increasing tendency, particularly since the introduction of the CPR, for these types of documents to be placed before the Court and relied upon at a hearing without being read out in open court.

This practice has developed on grounds of efficiency but, in the words of Lord Bingham in SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498, this 'has the side effect of making the proceedings less intelligible to the press and the public'. Consistent with principles of open justice therefore, the Court has developed a practice of exercising its inherent jurisdiction to allow non-parties access not only to the parties’ written submissions but also to other documents placed before the Court and referred to a hearing. As Lady Hale explained in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38, this is to “enable the observer to relate what the judge has done or decided to the material which was before him”.

In the same case, Lady Hale also outlined the approach that the Court should adopt in relation to an application for access to documents pursuant to the Court’s inherent jurisdiction:

  • it is for the person seeking access to explain why they seek it and how granting them access will advance the open justice principle. In this respect, the media may be better placed than others to demonstrate a good reason for seeking access;
  • whilst the “default position” is that access should be permitted on the open justice principle, the interests of the person seeking access should be balanced against any harm that might be caused to the interests of others. There may well be good reasons for not allowing access. Lady Hale cited 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 as examples of such reasons; and
  • The Court should also consider “the practicalities and proportionality of granting the request”. It is desirable that applications should be made during trial when the documents are more likely to be “readily available” and the trial judge can control the process.

Having identified these principles, the Supreme Court referred the specific question of whether the applicant should be allowed access to a core trial bundle back to the High Court. In his judgment on this issue ([2020] EWHC 1873 (QB)), Picken J considered Lady Hale’s statement that an applicant has to show that granting access will advance the principle of open justice. In Picken J’s view, this means that applicants have to justify their application by reference to the open justice principle and to explain why giving them access to documents would advance that principle (for example, by enabling them to understand the issues at stake in the litigation). In this case, the applicant wanted to obtain the core trial bundle so that it could be provided to sufferers from asbestos related diseases and potentially be used by them in any future claims that they might bring. The judge accepted that a desire to use the documents for other purposes, including in relation to other litigation, would not prevent a non-party from being provided with access to documents. However, he said that in this case there was “no real connection (or, in any event, an insufficient connection)” with the open justice principle because the applicant did not need the documents in order to understand the issues at stake in the main proceedings.

However, this decision should be seen in context. As noted above, the issue at this stage of the Cape v Dring litigation was whether the applicant should be provided with the core bundle of disclosed documents used at trial. The Court has historically been reluctant to provide non-parties with access to trial bundles (see, for example, GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection & Indemnity Association Ltd [1999] 1 W.L.R. 984 and British Arab Commercial Bank v Algosaibi Trading Services Ltd [2011] EWHC 1817 (Comm)) and, against that background, the decision is not surprising.

It is worth noting that, earlier in this litigation, the Court had ordered Cape to provide Dring with statements of case, witness statements, expert reports and written submissions used in the main trial. Applications for these types of documents (and skeleton arguments) are more likely to be successful because there will often be stronger arguments that access to them will advance the principle of open justice by enabling the applicant to understand the issues at trial. An importance aspect of Picken J’s decision was that Mr Dring had already been provided with enough information to do that.

Approaching the parties directly

In order to avoid the uncertainty and expense of a court application, it may be worth asking the parties themselves to provide copies of documents. The question of whether it will be necessary to approach one or all the parties will depend on the type of document sought and the stage that proceedings have reached. In very broad terms, a party cannot agree to provide a non-party with the other side’s disclosure or witness statements unless and until those documents have been read in open court.

It will often be in the interests of the parties to agree to provide at least some of the requested documents because this will enable them to retain control over the process, for example, by limiting the documents to be provided and requiring them to be returned at the conclusion of the trial. The parties will also wish to be seen to be acting reasonably as this will strengthen their position if an application is subsequently made to the Court.