The Civil Procedure Rule Committee is consulting on a revised rule 5.4C which, as currently drafted, would lead to parties’ witness statements, expert reports and skeleton arguments becoming public at a much earlier stage of proceedings than is currently the case. While it is clearly important that the press and the public should have appropriate access to court documents, in accordance with the principle of open justice, it is not clear that the current proposals strike the right balance.

Responses to the consultation are due on 8 April and Herbert Smith Freehills will be submitting a response. If any clients would like to discuss the proposals, please do get in touch.

The current position

At the moment, the only documents non-parties are able to obtain automatically from the court file under CPR 5.4C, without the court’s permission, are the statements of case (eg claim form, particulars of claim and defence) and any judgments or orders made in public (whether at a hearing or otherwise). The rules also separately provide that witness statements are open to inspection during trial, once the witness has been called to give evidence, so in practice these are often provided by the parties on request. Skeleton arguments are also often provided at trial, voluntarily, as the Commercial Court Guide encourages.

Non-parties can apply to the court for permission to obtain any other category of document, either under CPR 5.4C or under the court’s inherent jurisdiction to provide non-party access – which the Supreme Court has held is unlimited and should be exercised to give effect to the principle of open justice (see Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 considered in our blog post here). However, the principle of open justice applies where there has been a judicial decision: it enables the public to understand why decisions are taken and to scrutinise the decision-making process. In general, court documents will not be available to the public where they have not formed any part of the decision-making process, for example because a case has settled before a hearing.

The proposed new rule

Against that backdrop, the proposed new rule makes quite radical changes. Proposed CPR 5.4C(1) contains two separate provisions which would allow non-parties to obtain court documents without the need for permission:

  • The first, (1)(a), would enable a non-party to obtain “from the court records” the following additional categories of documents: skeleton arguments; witness statements and affidavits (but not any exhibits or annexures to them); and expert reports (except for medical reports or where excluded by a rule or practice direction). This would apply (as is the case currently for statements of case and judgments/orders) so long as all defendants had acknowledged service, or the claim had been listed for a hearing, or judgment had been entered, and subject to any order restricting access. So it seems that, in most cases, this would apply as soon as the documents are filed with the court, before any relevant hearing or trial.
  • The second, (1)(b), would give a separate right to obtain “at a hearing”, on request, copies of skeleton arguments and witness statements (but not expert reports). Skeleton arguments would be available at the start of the hearing but witness statements only when the witness is called and the witness statement stands as their evidence in chief. It would be the responsibility of the party who filed the skeleton or relies on the witness evidence to provide the copies.

The proposals give rise to a number of important issues, including as to the proper interpretation of the proposed new rules and whether they are intended to give such broad access as they appear on their face to provide. The summary of the proposed new rule in the minutes of the December 2023 meeting of the Civil Procedure Rule Committee, prior to the launch of the consultation, stated merely that (subject to a contrary order) skeleton arguments would be obtainable before the hearing, and witness statements and expert reports would be available when the witness was called or the statement/report was deployed in written form in court. The proposed new rule seems a far cry from that rather modest position.

How the two new provisions interact

While the two new provisions may not be inconsistent, it is not clear what the separate right at (1)(b), to obtain access to skeleton arguments and witness statements “at a hearing”, adds to (1)(a) which makes these documents available in any event (in most cases) as soon as they are filed. It may be that it is simply aimed at shifting the burden of providing these categories of documents from the court to the parties, once trial has begun, in light of the provision which states that under (1)(b) it is the responsibility of the relevant party to provide the document. But the two provisions do not sit comfortably together, which raises the question of whether (1)(a) is really intended to be as broad as the drafting would suggest – including because it is difficult to see why a witness statement would only be available from the relevant party once the witness had been called, if it was already available from the court file in any event.

Timing of documents becoming public

As noted above, the current position is that the court has a very broad discretion to allow public access to court documents, which the Supreme Court has held should be exercised in accordance with the principle of open justice. But proposed rule (1)(a) would appear to give a default right to access court documents, in the form of skeleton arguments, witness statements and expert reports, before these have played any part in the decision making process – and when they may never do so, as the dispute, or the relevant application, may be resolved without the need for any hearing or any judicial decision. This right of access would be subject to the relevant party (or parties) obtaining an order to restrict access, but it still represents a very significant shift in the balance between confidentiality and publicity and risks disputes being played out in the press to a greater extent than they are currently. It also seems surprising that, as drafted, there is no carve-out in respect of skeleton arguments, witness statements and expert reports in support of applications made without notice to the opposing party.

Rules on collateral use of witness statements and disclosed documents

Currently the CPR contain express restrictions on the collateral use of both witness statements served and documents disclosed by an opponent, which mean they can only be used for the purposes of the relevant proceedings, subject to certain exceptions including where the document has been read to or by the court or referred to at a public hearing, or the witness statement has been put in evidence at a public hearing. There are no such express restrictions on skeleton arguments or expert reports, but to the extent these refer to documents disclosed by an opponent they would also be caught. It is not clear whether there are any plans to amend the rules on collateral use if the proposed new CPR 5.4C is implemented. If not, it would appear to mean that the parties to litigation would be subject to collateral use restrictions on witness statements, and potentially expert reports and skeleton arguments, in circumstances where non-parties could be given access to such documents from the court file and would (presumably) be free of any restrictions on their use.

Retrospective application of the new rule

Given the lack of any transitional provisions in the proposed new rule, it would appear that the right to access skeleton arguments, witness statements and expert reports would apply retrospectively to those filed before the rule comes into effect. When CPR 5.4C was amended in October 2006 to provide automatic access to statements of case (which, apart from the claim form, had previously been available only with the court’s permission), concerns from court users as to its retrospective effect led to the hasty introduction of a transitional provision, at CPR 5.4C(1A), to apply the previous version of the rule to statements of case filed before the amended rule took effect. It would seem surprising if no similar transitional provision were to be introduced this time round. In the absence of any such provision, parties may wish to consider applications to restrict access, where appropriate, before the new rule takes effect.

“Court records”

Proposed new (1)(a) refers to obtaining skeleton arguments, witness statements and expert reports from the court records, but it is not entirely clear what is meant by “court records” in this context. Not all of these documents are filed via the court’s electronic CE-file system, at least not in all cases. Should “court records” be interpreted to include anything filed at court in any form, including for example documents emailed to the judge’s clerk, or is it narrower than that? Even where such documents are filed via the CE-file, such documents are not currently visible to non-parties on that system, so presumably technical changes would be required. And presumably the need to provide an increased range of documents from the court file would have resourcing implications, unless it were to be a wholly automated process (which we understand contrasts with the current position where statements of case are provided).

Provision of documents “at a hearing”

Proposed new (1)(b) requires parties to provide copies of skeleton arguments and witness statements, on request, “at a hearing”. This gives rise to logistical issues as to how the request is supposed to be made, including for example whether it is to the court or the parties – is it sufficient, for example, if an attendee at court makes an oral request to the solicitors? Does this have to be before the hearing starts or can they be tapped on the shoulder mid-hearing? How quickly do they have to comply? Do hard copies have to be made available, or can a copy be provided by email? It may be that some of these issues can be worked out in guidance or practice directions, but the current wording leaves lots of questions unanswered.

Chris Bushell
Chris Bushell
Partner
+44 20 7466 2187
Julian Copeman
Julian Copeman
Partner
+44 20 7466 2168
Maura McIntosh
Maura McIntosh
Professional support consultant
+44 20 7466 2608