In a recent decision, a High Court Master has taken a broad view of the documents that should be made available to a non-party where a case settled after trial: Dring v Cape Distribution Limited  EWHC 3154 (QB).
The decision draws a clear line between documents which are read or treated as read by the judge, which are subject to a default position in favour of granting access so long as the applicant has a legitimate interest in the documents – though the court must still conduct a balancing exercise in relation to any harm to other parties’ legitimate interests. In contrast, where documents are not read or treated as read by the judge, there must be strong grounds for thinking that access is necessary in the interests of justice.
The obvious question is which documents are treated as read by the judge. Here the Master took a broad view, essentially finding that the entirety of the paper bundle should be treated as read, though not documents which appeared only in an electronic bundle that was made available for reference in court on the basis that any documents relied on would be copied across to the paper bundle.
The decision emphasises that the courts do not merely provide a public service to the parties to a particular case; previous cases also form the basis of advice to other parties. That means that litigating parties are not free to determine the extent to which aspects of the proceedings should become public. Where parties have legitimate concerns regarding sensitive material, they should take steps to protect it before it is ventilated in court, for example by seeking an order that the court sit in private for the relevant part of the hearing. The present decision suggests that where parties do not take such steps, the court may have little sympathy if they reach a settlement on confidential terms and then seek to prevent material put before the court becoming publicly available.
This issue is topical, as the rules relating to open justice in CPR 39 are currently being considered by a sub-committee of the Civil Procedure Rule Committee (CPRC). The sub-committee’s preliminary note filed for the CPRC’s October meeting suggests it is considering possible amendments to strengthen the rules and help promote awareness that parties cannot waive the public’s right to open justice.
The applicant acts for a group which provides help and support to asbestos victims, as well as lobbying and promoting asbestos knowledge and safety. He sought access to documents filed in the course of product liability proceedings against manufacturers of asbestos insulation boards, in circumstances where those proceedings had settled after a lengthy trial.
The application was made principally under CPR 5.4C, which provides that a non-party to litigation may, if the court gives permission, obtain from court records a copy of “any other document” filed by a party (ie other than a statement of case or judgment or order made in public, which are generally available without the need for permission).
The applicant intended to make use of the material in various ways including: to make it publicly available; to promote academic consideration as to the science and history of asbestos and asbestolux exposure and production; to clarify the extent to which the defendant was or was not responsible for product safety issues; and to assist court claims and the provision of advice to asbestos disease sufferers.
The defendant resisted the application, including on the basis that the court had no jurisdiction to make the order sought because the case had settled.
The High Court (Master McCloud) granted the application, save in respect of documents appearing only in an electronic trial bundle (Bundle D, which comprised the totality of the parties’ disclosure documents whether or not relied on at trial) and the parties’ disclosure statements.
The decision gives a helpful summary of the principles relevant to an application for public access to court documents, including the following:
- CPR 5.4C is the primary means by which the court administers its common law power to allow public access to court documents but “the common law is the master and not the servant of the rules”.
- Where documents are filed on the court record they fall within the scope of CPR 5.4C(2). (If documents are removed from court, Blue v Times Newspapers Ltd  EWHC 1553 (Comm), considered here, may provide a basis for saying that the court can require them to be returned.) Served documents which are not on the court record do not fall within CPR 5.4C but may be disclosed under the court’s common law powers.
- Documents filed on the court record which are read or treated as read in court are subject to a default position in favour of the principle of open justice, if the applicant has a legitimate interest. However, the court must still conduct a balancing exercise in relation to any harm to other parties’ legitimate interests when deciding whether to allow access.
- Documents on the court record which are not read or treated as read are subject to a more stringent test, namely that there must be strong grounds for thinking that access is necessary in the interests of justice.
The Master found, contrary to the defendant’s submission, that the principle of open justice was engaged even where a case settled before judgment. The principle applies to documents which are read to or by the court, or treated as so read, or which have featured in proceedings in open court.
She was satisfied that the paper trial bundles had been filed and so their contents were on the court record for the purposes of CPR 5.4C. Bundle D had not been filed, but merely made available to the court in electronic form; there was no provision for filing documents electronically in the Queen’s Bench Division, where the case was proceeding (as opposed to the Rolls Building jurisdictions). She was also satisfied that documents such as submissions and skeletons, which were not in the paper bundles but were handed up to the judge in court and retained in court at the end of trial, were also filed for these purposes. If that was wrong, those documents would fall within the court’s common law powers and the Master would not have reached a different conclusion as a result of them not being filed on the court record.
As to whether the documents had been read or treated as read by the judge so as to give rise to a starting point of openness, the Master noted that one must take into account that modern practice encourages judges to pre-read bundles. Here the paper bundles were deployed in court and placed before the judge including after he retired to consider his decision. They were therefore subject to the “default position” that access should be given on the open justice principle. The same applied to other documents provided to the judge, namely submissions, skeletons and transcripts.
In contrast, the judge had not been invited to consider the documents which appeared only in Bundle D. The parties’ intention was that, where documents from Bundle D were referred to, they would be copied across to the paper bundles. The residue of the contents of Bundle D, therefore, was not material which featured in the decision-making process or was read or treated as read by the court.
In respect of those documents which were read or treated as read by the judge, the Master was satisfied that the applicant had a legitimate interest in obtaining the documents. There was a strong public interest in facilitating a better understanding of these matters, and a legitimate interest in ensuring the deployed material was available to courts and legal advisers “in the interests of both consistency of decision making and provision of advice as to merits or lack thereof” and to enable the public to consider how the material in the case led to a settlement.
In terms of the court’s balancing exercise, the applicant had expressed a valid concern that refusing access would risk the courts proceeding without relevant material in future cases. The Master emphasised that the courts are not a private dispute resolution forum but rather play a public role in informing other cases both as to law and procedure and as to “facts and knowledge in specialist areas”.
The Master was not persuaded by any of the defendant’s arguments regarding a risk of harm due to disclosure. She accepted that if parties were concerned that “dirty washing” or trade secrets etc contained in documents considered at trial would all become public even in the event of a settlement, that might discourage settlement (though conversely it might encourage ADR out of court in the first place). There are however ways of dealing with such concerns, through seeking non-disclosure orders or orders that part of a trial be held in private. In essence, the Master had little sympathy for parties that had “gone public” in court and then later decided to settle on confidential terms. The defendant had not put forward any particulars of harm it was likely to suffer as a result of publication.
In relation to the unfiled and unread material in Bundle D, although there was jurisdiction to order access to it at common law, the Master did not see any grounds for doing so. Parties should be encouraged to make such material available to the court, as the parties had done in this case, without them being easily amenable to public access. It was only at the point where documents played a role in the proceedings that the principle of open justice would apply.