Open justice wins in Supreme Court ruling
In a landmark judgement, the Supreme Court has ruled that the public should be allowed access to all documents placed before the court and referred to during a hearing, provided that applicants can explain why they’re seeking access and how granting access will advance the constitutional principle of open justice. Importantly, this decision clarifies how the courts’ inherent jurisdiction to order access to non- parties to civil proceedings should be exercised and how much written material placed before the court in a civil action should be accessible.
The Supreme Court’s ruling follows the appeal of a Court of Appeal judgement by Cape International Intermediate Holdings Ltd (Cape), a company that was involved in the manufacture and supply of asbestos, and a cross-appeal by Asbestos Victims Support Groups Forum UK (the Forum), an association providing support to sufferers from asbestos-related diseases.
Cape was the defendant in a trial before the High Court to claims brought by employers’ insurers for contribution to damages paid to former employees that had been exposed to asbestos manufactured by Cape. Claims in these proceedings were settled after trial but before judgement was delivered.
Application to access documents as a non-party to proceedings under CPR 5.4C
The case began when the Forum made an application to the High Court in April 2017 as a non-party to the Cape proceedings to access court records under CPR 5.4C, with a view to obtaining copies of all documents used at, or disclosed for, the trial, including trial bundles and transcripts.
The Forum believed that such documents would contain valuable information about the knowledge of the asbestos industry of the dangers of asbestos and the research carried out in the industry.
The Forum was successful in its application. Master McCloud granted an order allowing the Forum to obtain unprecedented access to documents, including the hard copy trial bundle, disclosed documents, witness statements, expert reports, transcripts and written submissions. Cape appealed on the basis that, inter alia, the Master did not have jurisdiction, under CPR 5.4C or the common law, to make an order of such broad scope.
Court of Appeal decision
The Court of Appeal allowed Cape’s appeal and set aside the Master’s order, limiting disclosure to documents within the following categories:
(a) statements of case
(b) witness statements and expert reports (although not documents referred to therein)
(c) skeleton arguments or written submissions read by the court (provided there was an effective public hearing)
(d) any document which is necessary for a non-party to inspect in order to meet the principles of open justice and
(e) documents in relation to which confidentiality has been lost under CPR 32.13 and which were read in open court, or the judge was invited to read in court.
In doing so, the Court of Appeal held that under CPR 5.4C(2) the court’s power to permit non-parties to access documents held by the court was limited. As such, it had no jurisdiction to permit non-parties to access trial bundles or documents referred to in skeleton arguments or written submissions, or in witness statements or experts’ reports simply because they had been referred to in the hearing. In terms of further disclosure, the Court of Appeal ordered that the application be listed before the trial judge or another High Court judge to decide whether any documents sought by the Forum fell under categories (d) or (e) above, and if so whether Cape should be ordered to be provided copies.
Cape appealed the Court of Appeal’s decision, arguing that the Court of Appeal did not have jurisdiction to make the order and disclosure to non-parties should be limited to the statements of case held on the court file. The Forum cross-appealed on the ground that the Court of Appeal was wrong to limit the scope of CPR 5.4C(2).
Supreme Court decision
The Supreme Court unanimously dismissed Cape’s appeal and the Forum’s cross-appeal, finding that the Court of Appeal not only had jurisdiction to make the order it did, but also had jurisdiction to make a wider order if it were right to do so. The Supreme Court also clarified that the basis of making any wider order was the inherent jurisdiction in support of the open justice principle and not CPR 5.4C(2) as submitted by the Forum.
The Supreme Court ruled that the Court of Appeal had the jurisdiction to make its prior order relating to the categories of documents to be disclosed by the court to a non-party and furthermore that, applying the constitutional principle of open justice, this jurisdiction also extended to the making of a wider order, if it were right in the circumstances to do so. The basis of any such further order would be in the inherent jurisdiction in support of the open justice principle, not the CPRs.
The Supreme Court ruled that the elements of the Court of Appeal’s order relating to the provision of statements of case, witness statements, expert reports and written submissions ought to stand, but that the remainder of the Forum’s application should be listed before the trial judge (or another High Court judge) to determine “whether the court should require [Cape] to provide a copy of any other document placed before the judge and referred to in the course of the trial to [the Forum] (at [the Forum’s] expense) in accordance with the principles laid down by this court.”
The court’s inherent jurisdiction to grant public access to documents
Referring to the principles laid down in Guardian News and Media, the Supreme Court clarified that the basis of making any wider order is the court’s inherent jurisdiction in accordance with the principle of open justice, a notion at the heart of the English system of justice and vital to the rule of law - not CPR 5.4C.
The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. The main purposes of the open justice principle are two-fold:
(a) to allow the public to scrutinise the transparency of the legal process and hold the judiciary to account and
(b) to enable the public to understand how the justice system works and why decisions are taken.
Because the open justice principle requires justice to be done in the open, the default position is that the public should be allowed access to the documents which have been placed before the court and referred to during the hearing. Those documents are not limited to those the judge has been asked to read or has said that he/she has read.
The court’s fact-specific balancing exercise in determining the scope of access to documents
However, in exercising its inherent jurisdiction, the court retains a broad discretion to determine the scope of access to court documents by non-parties.
The court will carry out a fact-specific balancing exercise, bearing in mind the open justice principle and the potential value of the information to be disclosed to the public, but also taking account of the risk disclosure may cause to the maintenance of an effective judicial process. It follows that the court may deny access to documents on grounds of national security, protection of the interests of children or mentally disabled adults, privacy interests or commercial confidentiality. The practicalities and the proportionality of granting the request will also be relevant, especially when non-parties seek access after the proceedings are over.
No automatic right for the non-party applicant to be granted access
Although the court has an inherent jurisdiction to allow access, non-party applicants have no absolute right to be granted a document and are expected to explain how granting access will advance the principle of open justice. In this respect, it is possible in some cases that the media might be better placed than others to demonstrate a good reason for seeking access. The practicalities, proportionality and timing of the access request may also be relevant.
The Supreme Court ruling constitutes an important decision for access to documents by people and organisations who are not party to court civil proceedings, including journalists, academics and members of the public. It is a very significant endorsement of the principle of open justice, reinforcing judicial transparency and public scrutiny of the workings of the law – a reminder that not only must justice be done, but that is must also be seen to be done. Whilst some implications of the ruling remain unclear (such as, for example, how long documents must continue to be available once proceedings have concluded), it appears likely that the ramifications have the potential to be far reaching. The impact of the Supreme Court ruling will depend on how discretion is exercised in practice and will need to be developed in further case law, but parties to litigation should be aware that this basis for such applications is now clearly established.
 Cape Intermediate Holdings Ltd (Appellant/Cross-Respondent) v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK)  UKSC 38, 29 July 2019; on appeal from  EWCA Civ 1795.
 Ibid, para. 50