This case marks the latest instalment in the Dring litigation, in which the Asbestos Victims Support Groups Forum UK (“the Forum”) is seeking access to trial documents, mainly for use in other asbestos claims: Dring (for and on behalf of The Asbestos Victims Support Groups Forum UK) v Cape Intermediate Holdings Limited [2020] EWHC 1873 (QB).

There have been a number of judgments in these proceedings, culminating in a decision of the Supreme Court giving guidance on how a court should approach an application for non-party access to documents referred to in open court (see our post here). The Supreme Court then remitted the case to the High court to determine how those principles should be applied on the facts.

The Supreme Court held that all courts have an inherent jurisdiction to order disclosure in accordance with the principles of open justice. The principal purposes of the open justice principle are, first, to enable public scrutiny of the decision making process and, second, to enable the public to understand how the justice system works and why decisions are taken. This requires the public to be put in a position to understand the issues and the evidence adduced

The High Court held that the effect of the Supreme Court’s decision was that it was not enough to  show that access to documents would be in accordance with the open justice principle, it also had to be shown that such access would advance that principle. The Forum had already been provided with statements of case, experts’ reports, witness statements and submissions. Open justice did not require provision, in addition, of the underlying documents.

Even after four judgments in this case, this may not be the final word on the matter. There was considerable discussion in the High Court of how the Supreme Court decision should be interpreted, and permission to appeal may be sought by the Forum.

If the High Court has correctly interpreted the Supreme Court’s decision, the focus in future applications will, it seems, be on what is required to understand what is taking place before the court, rather than the use the applicant intends for the documents.

Background

The Forum brought an application to access the trial bundles and other documents used in the course of proceedings against Cape Intermediate Holdings Ltd (“Cape”), manufacturers of asbestos insulation boards. Those earlier  proceedings had settled before judgment after a six week trial before Picken J.

The application was made primarily under CPR 5.4C(2), which 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 under its inherent jurisdiction.

The documents were sought mainly with a view to using them in other asbestos litigation. This was on the basis that they would contain information about matters such as knowledge within the industry of the dangers of asbestos, research carried out by the industry and the influence it had in setting health and safety standards. This information would be useful to claimants, defendants and the court in understanding the issues in asbestos-related disease claims.

High Court decision

The High Court (Master McCloud) granted access to the entirety of the paper trial bundle (some 5,000 pages in 17 lever arch files), as well as skeleton arguments and transcripts, only refusing access to an electronic trial bundle which comprised the totality of the parties’ disclosed documents whether or not relied on at trial.

Court of Appeal decision

On the respondent’s appeal, the Court of Appeal overturned the Master’s very broad order. It found that the “records of the court” for the purpose of CPR 5.4C(2) were much more limited than the Master had held. It ordered production under the court’s inherent jurisdiction of statements of case, witness statements, experts’ reports and written submissions but took the view that there was no inherent jurisdiction to permit non-parties to obtain the trial bundles generally, or documents merely referred to in skeleton arguments, written submissions, witness statements, experts’ reports or in court.

Cape brought a further appeal to the Supreme Court, and the Forum cross-appealed.

Supreme Court decision

Lady Hale, delivering the judgment of the court, noted that CPR 5.4C(2) allows non-parties to obtain documents from the “records of the court”, but this term is not defined. In the Supreme Court’s view, the term must refer to those documents and records which the court itself keeps for its own purposes, not every document filed with the court.

However, current practice as to court record keeping cannot determine the scope of the court’s power to order access to documents in particular cases. Unless inconsistent with statute or court rules, all courts and tribunals in the UK have an inherent jurisdiction to permit access in accordance with the principle of open justice.

The principal purposes of the open justice principle are, first, to enable public scrutiny of the decision making process and, second, to enable the public to understand how the justice system works and why decisions are taken. This requires the public to be put in a position to understand the issues and the evidence adduced.

It is for the party seeking access to explain why access is sought, and to explain how granting access will advance the open justice principle. The media may be better placed than others to demonstrate this, but others may also be able to show a legitimate interest in obtaining access. In determining whether and to what extent a non-party should be given access the court must carry out a fact-specific balancing exercise between, on the one hand, the potential value of the information in advancing the purpose of the open justice principle and, on the other, any risk of harm to an effective judicial process or the legitimate interests of others. The practicalities and considerations of proportionality may also be relevant – eg if an application is made after the proceedings are over, where the court and the parties may no longer have the material, or the burdens in identifying it and retrieving it may be out of proportion to the benefits – though, the court noted, increasing digitisation of court materials may eventually make this easier.

The Supreme Court held that the Court of Appeal’s order requiring production of statements of case, witness statements, experts’ reports and submissions should stand (amounting to some 1,716 pages), and that an application should be listed before the High Court to determine, in accordance with the principles laid down by the Supreme Court, whether Cape should be ordered to provide a copy of any other document placed before the judge and referred to in the course of trial.

High Court decision on remitted application

A hard copy bundle of documents, bundle C, had been prepared containing all of the documents referred to during the course of trial, so the argument concerned whether the Forum should be provided with a copy of bundle C.

The High Court, Picken J, dismissed the application for production of bundle C.

The court first rejected the submission that where documents had been read by the court as part of the decision making process, the court should lean in favour of disclosure if a legitimate interest could be shown for obtaining them. It was clear that the Supreme Court had taken the opportunity to restate the applicable principles in respect of non-party access in a way which made it no longer appropriate to apply the “legitimate interest” approach.

In terms of the proper approach to be adopted, it was clear from Lady Hale’s judgment that a third party making an application for access to documents should show that the documents will advance the open justice principle. It was not enough to  show that access to documents would be in accordance with the open justice principle, it also had to be shown that such access would advance that principle.

No prior hurdles should be placed on the exercise of the court’s discretion. Instead, there is a sliding scale and where a particular case appears on that scale will depend on a range of factors, including whether access will advance the open justice principle and if so to what extent. The court should engage in a balancing exercise and accord appropriate weight to the various different factors. The fact that a third party is seeking documents for collateral purposes which have only a limited connection with advancing the open justice principle won’t operate as a bar to ordering production, but it will be a factor which weighs less heavily in the balancing exercise than if the documents sought would more significantly advance the open justice principle.

As the Supreme Court had upheld the Court of Appeal’s decision in respect of particular documents, the Forum had triggered the open justice principle to that extent. The question now was whether, carrying out the balancing exercise, the Forum should be given access to bundle C.

The High Court considered that the reason for seeking the documents, to enable the Forum to use them for other purposes, including in relation to other litigation, did not advance the open justice principle. The documents in bundle C were not required by the Forum in order to understand what the issues in the underlying proceedings were and what the evidence concerning those issues constituted. The evidence put forward by the Forum sought to establish a “legitimate interest” and that was no longer the appropriate focus. There was no suggestion in the evidence that the Forum was unable to understand the issues which arose or the evidence adduced and it was incumbent on an applicant to justify its application by reference to the open justice principle.

Crucially, the Forum was able to understand the issues and evidence from the experts’ reports and written submissions. In effect the Forum was making a third party disclosure application as it would be more useful, from an evidential point of view,  for the underlying documents to be available for use in other litigation, but doing so without the constraints such an application would be subject to. It was also a factor, although by no means decisive, that Cape will likely not be a party to proceedings in which the documents are used and will therefore have no ability to put forward any explanation regarding them. Finally it was relevant that if an application had been made during trial, measures may well have been taken to ensure the Forum was able to follow what was happening in the proceedings, for example allowing a computer screen to be looked at when documents in the trial bundle were referred to. The court would not have ordered provision of trial bundle documents, and it would seem odd that the Forum, by making the application after trial, should be put in a better position.

If the court had been minded to order disclosure then it would not have considered it impracticable or disproportionate to do so. The trial bundle was in the possession of Cape’s solicitors and in practical terms supplying a copy to the Forum would be a straightforward matter.

The end of the case?

Picken J began his judgment by saying “this case has had an interesting life”. It may well be that it has not come to an end, as we understand permission to appeal may be sought by the Forum.

Anna Pertoldi
Anna Pertoldi
Partner
+44 20 7466 2399
Maura McIntosh
Maura McIntosh
Professional support consultant
+44 20 7466 2608