The Court of Appeal has strongly criticised a Queen’s Bench Master who allowed six boxes of court documents to be removed from the High Court by a non-party without notifying the defendant.
However, appeal judges did clarify the wide range of documents that could be inspected by a non-party in the interests of open justice.
Sir Brian Leveson, president of the Queen’s Bench Division, said there were a “number of features” of Master McCloud’s conduct which “cause very real concern”.
Given the “unprecedented scope” of the order sought by the Asbestos Victims Support Groups Forum UK (AVSGF), he said the defendant, Cape Intermediate Holdings (CIF), should have been involved from the start.
Sir Brian said Master McCloud was also wrong to “arrogate the proceedings to herself”, when they should have been heard by a High Court judge.
She was wrong again to order that there be no contact with the trial judge, Mr Justice Picken or his clerk – “an order for which there would appear to be no jurisprudential basis or appropriate justification”.
The master was also wrong to order a mandatory injunction, requiring the parties to spend £1,800 transferring a trial bundle onto a hard drive, which “she ordered to be to be delivered up to and retained by the court after the case had settled”.
In addition, Sir Brian said there were “a number of highly unsatisfactory features of the process adopted by the master in relation to the handing down of her judgment”.
Among them were that she made a final order at a handing-down hearing at which the defendants were not represented and had not set out their position, and put the order “into immediate effect in CIH’s absence and without any opportunity for representations to be made”.
Sir Brian said that on the day judgment was handed down, Master McCloud permitted representatives of the AVSGF “to take six boxes of files with them when they left the court, notwithstanding her finding that the documents were part of the court file”.
He went on: “This meant that anyone else wanting to access the records of the court would be unable to do so. Furthermore, court staff would have no role in supervising the copying of the documents and there was no way of ensuring that all documents removed were ultimately returned.”
Lord Justice Hamblen, who gave the main ruling in Cape Intermediate Holdings v Dring (Asbestos Victims Support Group Forums)  EWCA Civ 1795, said the order made by Master McCloud went “far beyond the relatively narrow confines” of CPR 5.4C(2).
The parties agreed that the court had an “inherent jurisdiction” to provide “certain materials to non-parties”. CIH argued it was limited by case law and the CPR to skeleton arguments and written submissions only.
AVSGF argued that the court’s powers were “broad”, and, in the interests of justice, this was “particularly important”.
Summarising the position, Hamblen LJ said there was no jurisdiction to allow non-parties to inspect trial bundles or documents “referred to in skeleton arguments/written submissions, witness statements, experts’ reports or in open court simply on the basis that they have been so referred to”.
However, he said courts had jurisdiction to allow non-parties inspection of witness statements, expert reports, documents read in open court or “which it is clear or stated that the judge has read”, skeleton arguments or written submissions by advocates read by the court, and “any specific document or documents which it is necessary for a non-party to inspect in order to meet the principle of open justice”.
Hamblen LJ concluded that although there may be some documents covered by the master’s order for which there was jurisdiction to allow inspection, there were “so many problems raised by the terms in which the order was made that I consider that the whole order should be set aside”.
He added that he trusted that the parties would agree an order which “reflects the categories of the requested documents which there is a right to inspect”.
Sir Brian and Lord Justice Newey agreed.