Members of the public may now find it difficult to understand what is going on in a case without access to some of the documents before the court. Modern court rooms differ considerably from those of twenty years ago. Court bundles are to some extent read before the hearing, and much of the evidence and written submissions before the court will only be alluded to in argument.
This problem has been addressed by Master McCloud in Dring v Cape Distribution Limited in an application made on behalf of the Asbestos Victims Support Groups Forum (UK). She gave the Forum access to most of the documents before the court in a product liability trial relating to the manufacture of asbestos insulation boards by certain Cape companies. The case settled in early 2017 after the end of the trial but before the court gave judgment.
This decision goes further than any previous authority in applying the principle of open justice so comprehensively to litigation which has settled before judgment. It may well be reviewed by the Court of Appeal for this reason.
Whether or not there is an appeal, the decision will have an immediate effect upon the way litigants behave. We discuss what changes are likely to result.
Access to court documents
Under CPR rule 5.4C a member of the public is entitled to obtain statements of case, without attached documents, if the defendants have all acknowledged service or filed defences, or the claim has been listed for a hearing, or judgment has been entered. They can also see judgments or orders made in public.
CPR 5.4C(2) provides that the court can give permission for a non-party to obtain a copy of any other document filed by a party. A party can apply for an order restricting public access to documents on the court file. If an application is made, the court can give notice to the relevant party.
Common law power and open justice
The Civil Procedure Rules are the primary means of applying the court’s common law power to allow access to court documents but the common law is the master and not the servant of the rules. The principle of open justice requires this.
In Guardian News and Media v Westminster Magistrates Court, the Court of Appeal allowed the Guardian to take copies of documents before the court as part of an application by the US Government for two extradition orders. Toulson LJ began his judgment in this way:
"Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips … Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse..."
He also said that where documents were put before a judge and referred to in the course of proceedings, the default position should be to give access. Toulson LJ acknowledged that the decision broke new ground in the application of the principle of open justice, but not in relation to the nature of the principle itself. The Court of Appeal allowed the Guardian to take copies of documents before the court as part of an application by the US Government for two extradition orders.
Effect of the settlement agreement
The confidential settlement agreement concluded after the product liability trial required the documents in question to be destroyed. This led to an application to preserve the documents in April 2017 which Master McCloud granted. She was clear in her recent judgment that the court is not a private dispute resolution forum. The parties cannot use a confidential settlement agreement to limit the extent of the public’s knowledge of the proceedings.
Master McCloud read earlier case law in the light of Guardian News and concluded that the fact that the Cape case had settled did not prevent the principle of open justice from being engaged. The same conclusion had been reached by Bean J in NAB v Serco: it may be as much in the public interest to know why a case settled as it is to understand a judgment.
Standing and legitimate interest
Having satisfied herself that the principle of open justice can require disclosure even where the case has settled, Master McCloud still had to consider the position of the applicant. She concluded that the intended use of the material – for academic purposes and to help victims of asbestos exposure to proceed with claims on an informed footing - was a legitimate interest and not a speculative fishing expedition.
This was not a surprising outcome. In August 2017, Master McCloud gave Cape permission to be heard at the hearing about access to documents on condition that it could not seek an order for costs against the applicant. She considered this necessary in the public interest to avoid the serious risk that Cape might choose to incur considerable cost to oppose access to court records in its own commercial interest and thereby snuff out the application.
There was much technical debate about the different types of document, the definition of filing a document at court and the precise test to be applied. This was relevant to the exercise of the CPR 5.4C jurisdiction but the Master concluded that it did not affect the common law power to order disclosure where documents had not been filed eg, where a bundle was electronic, or where skeleton arguments, submissions and transcripts were handed to the judge. She did not order disclosure of a digital bundle that had been available but was not referred to.
There was a wealth of historical material and records relating to asbestos safety and regulation before the court. Master McCloud opted in favour of wide disclosure to avoid the risks presented by cherry picking. She ordered disclosure of the following:
- Witness statements including exhibits
- Expert reports
- Disclosed documents relied on by the parties at trial
- Written submissions and skeletons
- Statements of case including requests for further information and answers if contained in the bundles relied on at trial
Many may have been surprised by the forcefulness of Master McCloud’s decision but its tone is in line with that taken in Guardian Express, followed in other recent cases such as NAB v Serco. Her conclusion that confidentiality and destruction of data clauses in settlement agreements shouldn’t be allowed to prevent open justice chimes with the times and recent revelations about non-disclosure agreements in sexual harassment cases.
It’s important to remember that there will be many instances in which the court would refuse to grant an application for access to court documents. These include situations where the information is sensitive in some way or the applicant does not have a legitimate interest. Master McCloud noted that Cape had not raised any issues about privacy or sensitivity of the material before the court during the case. Parties who have such concerns should apply for an order under CPR 5.4C(4) to restrict access and where appropriate should ask for a private hearing so that information is not ventilated in public.
What effect is this decision likely to have on litigants?
No doubt some will choose where they can to arbitrate to ensure confidentiality. Where this is not possible because the interests of the parties differ, defendants are more likely to choose to settle before a hearing or trial. They need to bear in mind the fact that a tightly drafted settlement agreement may not be able to ensure complete confidentiality about proceedings. The safest option will be to settle before the claimant begins proceedings so that no documents are filed at court.
New proposals for a more restricted disclosure regime (see this briefing) and the increase of highly case managed trials, such as those in the Shorter Trials Scheme, will restrict the volume of data put before the court. In large scale litigation, however, there will still be plenty of material – skeleton arguments and submissions, witness statements and expert reports – that will be of interest to journalists, pressure groups and those helping potential litigants.
Master McCloud refused permission to appeal but commented that if one were to be allowed, she thought it should be heard by the Court of Appeal, given her reliance on the Court of Appeal’s decision in Guardian Express. It seems highly likely that an appeal will go ahead given the importance of this decision for insurers generally, and not only for those on the receiving end of mesothelioma and other asbestos-related claims.