by Rachel Lidgate, Partner, Dispute Resolution Division, London Herbert Smith Freehills LLP
The Court of Appeal has overturned a High Court Master’s order granting non-party access to the entirety of the hard copy trial bundles in a case that settled before judgment. The decision helpfully clarifies the extent of the court’s discretion to grant non-party access to court documents, both under the CPR and under its inherent jurisdiction: Cape Intermediate Holdings Limited v Dring  EWCA 1795 (Civ).
The upshot of the decision is that the court has no discretion to permit non-parties to inspect trial bundles generally, or documents merely referred to in skeleton arguments, witness statements/expert reports, or in open court. In addition to formal documents kept on the court file, which may be provided to non-parties under CPR 5.4C, the court has an inherent jurisdiction to permit inspection of:
▪ witness statements and expert reports that stand as evidence in chief during trial (but not documents exhibited to them);
▪ documents which are read or treated as read by the court, ie because they have been read out in open court, the judge has been specifically invited to read them (whether in open court or outside court), or it is clear or stated that the judge has read them;
▪ skeleton arguments/written submissions and similar advocates’ documents deployed at a public hearing; and
▪ any other specific documents necessary for a non-party to inspect in order to meet the principle of open justice.
In terms of the exercise of its discretion, the court has to balance the non-party’s reasons for seeking inspection against the parties’ interests in preserving confidentiality. The court is likely to lean in favour of granting permission where the principle of open justice is engaged and the applicant has a legitimate interest in inspection – and this decision confirms that the principle of open justice will be engaged as soon as there is a hearing of the matter, whether or not it settles before judgment. Conversely, where the open justice principle is not engaged, the court is unlikely to grant permission unless there are strong grounds in the interests of justice.
This decision will be welcomed by litigants as restoring more limited boundaries to the court’s discretion to grant non-party access to court documents, in contrast to the very broad approach taken by the Master in this case. However, even following the Court of Appeal’s decision, it is clear that litigating parties prevent documents becoming publicly available by settling the case before judgment. The principle of open justice will be engaged once there is a hearing; a judicial decision is not required.
Rachel Lidgate, a partner in the disputes division of Herbert Smith Freehills, considers the decision further below.
In brief, Graham Dring (on behalf of an asbestos victims support group) brought an application to access the trial bundles and other documents used at the trial of claims against the respondent relating to its former employees’ alleged exposure to asbestos. These earlier proceedings had settled in March 2017 (after trial).
The application was made primarily under CPR 5.4C, which codifies the common law principle of open justice. CPR 5.4C(2) provides that a non-party to litigation may, if the court gives permission, “obtain from the records of the court a copy of any other document filed by a party” (that is, any document other than a statement of case or judgment or order made in public, which are available without permission under CPR 5.4C(1)). In the alternative, the applicant contended that the court had power to grant access to such documents under its inherent jurisdiction.
The High Court (Master McCloud) granted the application in respect of almost all categories of documents sought, including the entirety of the paper trial bundle as well as skeleton arguments and transcripts. She did not grant access to documents appearing solely in an electronic trial bundle, which comprised the totality of the parties’ disclosure documents whether or not relied on at trial.
The respondent appealed. The appeal was heard by the Court of Appeal (rather than a High Court judge) in view of the importance of the issues raised.
The Court of Appeal allowed the appeal, overturning the Master’s very broad order. It clarified the extent of the court’s jurisdiction to order non-party access to court documents, both under CPR 5.4C and its inherent jurisdiction, and the basis on which that discretion should be exercised. Hamblen LJ gave the leading judgment, with which Newey LJ and Sir Brian Leveson P agreed.
The court’s jurisdiction under CPR 5.4C
First, the court agreed with the respondent that the Master had exceeded her jurisdiction in purporting to make her order under CPR 5.4C. The “records of the court” for the purposes of that rule are essentially documents kept by the court office as a record of the proceedings, many of which will be of a formal nature. They do not include: trial bundles; trial witness statements or expert reports (though they may include evidence filed for an interim application); skeleton arguments or written submissions; or trial transcripts.
The court’s inherent jurisdiction
The respondent accepted that the court’s inherent jurisdiction to grant non-party access goes beyond the express powers in CPR 5.4C and includes (as established in GIO Personal Investment Services Ltd  1 WLR 984) copies of skeleton arguments or written submissions used in lieu of oral submissions. The justification is that open justice requires the public to have the same opportunity to understand the issues as they would have had if the written submissions had been delivered orally.
The Court of Appeal rejected the respondent’s submission that the court’s inherent jurisdiction did not go beyond this. It said GIO still stands as authority that the jurisdiction does not extend to allowing non-party access to trial documents simply on the basis that they have been referred to in a skeleton argument, witness statement, expert report or in court. However, there was one aspect of the GIO decision in relation to which law and practice had moved on. In light of the increasingly common practice of judges being invited to read documents for themselves, rather than having them read out in court, the court should be regarded as having inherent jurisdiction to allow non-parties access to documents read or treated as read in open court, so as to put non-parties in the same position they would have been in had the trial been conducted orally (see further below).
The Court of Appeal helpfully summarised the current legal position by reference to the main categories of documents that might be sought by a non-party, as follows:
Trial bundles: There is no inherent jurisdiction to allow inspection of trial bundles generally.
Skeleton arguments: The court has inherent jurisdiction to allow inspection of skeleton arguments provided that there is a public hearing at which they are deployed. The same applies to other advocates’ documents such as chronologies, dramatis personae, reading lists and written submissions.
Witness statements: Under CPR 32.13 non-parties have the right to inspect witness statements which stand as evidence in chief in the course of the trial. The court has an inherent jurisdiction to allow inspection of such statements after trial. The position is the same for experts’ reports.
Exhibits to witness statements: There is no inherent jurisdiction to allow inspection of exhibits.
Documents read or treated as read in open court:
Under CPR 31.22 a party may only use a document that has been disclosed in litigation for the purposes of that litigation, subject to certain exceptions including where it has been “read to or by the court, or referred to” at a public hearing. The Court of Appeal referred to the decision in Barings v Coopers & Lybrand  1 WLR 2353, which suggested a presumption, for these purposes, that where documents are put before the court for the purpose of being read in evidence, they have in fact entered the public domain unless the contrary is shown (eg because the judge did not read them).
In the present case, the Court of Appeal held that, in the context of non-party access to court documents, any such presumption should be limited to documents which the judge is specifically invited to read, such as those referred to in a reading list. It should not include documents which are merely referred to in some other document, whether that is a skeleton argument, witness statement, expert report or some other trial document. The court gave the following list of documents which fall within the court’s inherent jurisdiction on this basis, saying they are all documents which are likely to have been read out in open court had the trial been conducted orally:
▪ Documents read out in open court;
▪ Documents which the judge is invited to read in open court;
▪ Documents which the judge is specifically invited to read outside court; and
▪ Documents which it is clear or stated that the judge has read.
▪ Other documents necessary to meet the principle of open justice.
The public would be allowed to access documents not falling into the above categories where “it is not possible for a reasonable observer to understand the trial evidence, argument or issues without inspection of the document or documents in question”.
The exercise of the court’s discretion
The Court of Appeal referred to the High Court decision in Dian AO v Davis Frankel & Mead  1 WLR 2951, in which the court distinguished between documents which have been considered as part of the court’s decision making process, and those which have not been judicially considered. It agreed with that distinction, saying that the former category engages the principle of open justice whereas the latter does not.
The Court of Appeal rejected the respondent’s submission that the open justice principle is not engaged where a case settles before judgment. The principle is engaged, the court held, once there is an effective hearing. The principle may be “more fully engaged” if the hearing proceeds to a judgment, but it is still engaged where there is a hearing. It is only where an application is determined on the papers, and so there is no hearing, that a judicial decision is necessary to enage the principle.
In exercising its discretion to grant non-party access, whether under CPR 5.4C(2) or the court’s inherent jurisdiction, the court has to balance the non-party’s reasons for seeking copies of the documents against the parties’ private interest in preserving their confidentiality. The decision provides some clarity as to the factors relevant to the balancing exercise, which the court said are likely to include:
▪ The extent to which the principle of open justice is engaged;
▪ Whether the documents are sought in the interests of open justice;
▪ Whether there is a legitimate interest in seeking copies of the documents, and whether this is a public or a private interest;
▪ The reasons for seeking to preserve confidentiality; and
▪ Any harm which may be caused to the legitimate interests of other parties.
The court endorsed the approach adopted in Dian that the court is likely to lean in favour of granting permission where the principle of open justice is engaged and the applicant has a legitimate interest in inspection. Conversely, where the principle is not engaged, the court is unlikely to grant permission unless there are strong grounds for thinking that it is necessary in the interests of justice to do so.
In the present case, the Court of Appeal held that the principle of open justice was engaged for all documents in respect of which it found the court had jurisdiction. Further, the Master was clearly entitled to find that the applicant had a legitimate interest and that finding was not open to challenge on appeal. There was no need to go further and find “strong grounds in the interests of justice”.
Many thanks for permission to reproduce this article
Partner, Dispute Resolution Division, London Herbert Smith Freehills LLP www.herbertsmithfreehills.com