Asbestos victims fail again in bid to access case papers

Picken: Balancing exercise

The group whose bid to access a bundle from litigation involving an asbestos manufacturer led to a Supreme Court ruling on open justice has failed in its application for the documents.

Mr Justice Picken ruled that supplying the documents would not advance the open justice principle, as laid down by the Supreme Court in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38.

The case is set to rumble on, with the claimant’s solicitor, Harminder Bains, a partner at Leigh Day, confirming that they would seek permission to appeal.

Graham Dring, on behalf of the forum, applied in 2017 to access documents from a claim against asbestos manufacturer Cape, which were due to be destroyed, as he believed that they contained valuable information that could aid other asbestos-related litigation.

Though granted at first instance, the Court of Appeal limited the documents the forum could see.

The Supreme Court decided that non-parties to litigation should generally have access to all written submissions and documents which have been placed before the court and referred to during the hearing, but that they should not seek access unless they can show a good reason why it would advance the principle of open justice.

The case was remitted back to the High Court to decide on whether the forum should have access to the core bundle, known as Bundle C. It amounted to more than 5,000 pages, although by the time of the hearing before Picken J, the forum had received about a third of them.

The judge rejected the claimant’s suggestion that he had no choice but to give access to the documents as a result of the Supreme Court ruling, saying it would not have remitted the case had that been so.

He continued: “I am quite clear, in the circumstances, that a third party should not merely show that access to documents would be in accordance with the open justice principle but also that such access would advance the open justice principle.

“If the position were otherwise, and an applicant could merely insist on production of documents on the basis that this would be in accordance with the open justice principle, there would be nothing to stop anybody making an application and doing so in overly wide terms.”

The question of whether the documents would advance the open justice principle formed “part of the balancing process which is entailed in the court deciding how the discretion should be exercised”.

In refusing the application, Picken J said: “In making the application, the forum is seeking not to advance the open justice principle but simply trying to obtain documentation for deployment in other litigation.

“The forum already knows what the issues in the underlying litigation were and what the evidence before the court in that litigation entailed. The real motivation behind the application is a concern on the part of the forum that it would be more useful from an evidential perspective were the underlying documents contained within Bundle C to be available for use in other litigation.

“In that sense, the forum is, in effect, making a third-party disclosure application in relation to other proceedings but seeking to do so without regard to the constraints to which a genuine disclosure application would be subject.”

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