Open justice wins out as court releases tobacco case papers

Tobacco: Reason for seeking access to documents not determinative

Another third-party bid to see documents used in a high-profile piece of litigation, this time involving the tobacco industry, has been successful.

The decision comes in the wake of August’s Court of Appeal’s ruling in Cape, concerning access to documents in a major piece of asbestos-related litigation, which is due to be heard next month by the Supreme Court.

The Ministry of Justice also consulted last summer on amendments to part 39 of the CPR, to clarify open justice requirements in relation to hearings in private and reporting restrictions. The outcome has not yet been announced.

R (on the application of British American Tobacco UK Ltd & Ors) v Secretary of State for Health [2018] EWHC 3586 (Admin) followed the series of unsuccessful claims for judicial review brought in 2015 by the tobacco industry against the government’s plan to regulate the packaging of tobacco products.

A representative of the Campaign for Tobacco Free Kids then sought disclosure of various court documents, supported by Action on Smoking and Health as intervener.

The campaign is a US-based non-governmental organisation that promotes tobacco control measures and legislation worldwide, particularly in lower and middle-income countries.

It said disclosure of various pieces of evidence used in the cases would aid the understanding of the legal and factual issues surrounding the question of standardised packaging and would promote debate.

Lord Justice Green, sitting in the Administrative Court, said there had been a “vast” number of documents, not all of which had been used, but the material sought was of central relevance to the legal issues arising in the litigation.

He stressed the importance of “transparent justice” and said that, in cases such as this, “the power should be exercised presumptively in favour of disclosure”.

Deciding to order it, Green LJ said the jurisprudence did not suggest that the reason why a person sought access should be determinative.

Further, though here the applicant did not attend the hearing, he would have had an unfettered right to do so, and there was no suggestion that the material sought was subject to some overriding security, confidentiality or other claim which limited its disclosure to the public.

“In such circumstances, it is difficult to resist the conclusion that having asked, the applicant should be entitled, without more, to the documents in question. But to the extent that the reasons are germane, they are in this case compelling.

“The point of departure is that the documents should be made available absent some good reason to the contrary. There are no such reasons here.”

The documents raised issues relating to public safety and health, Green LJ said, while the issue of standardised packing was “of broad continuing importance to the international community” and the evidence, or material similar to it, “is still being advanced by the tobacco industry in the UK and in other jurisdictions, according to ASH”.

The decision in favour of disclosure was also strengthened by World Health Organisation guidelines urging a “proactive” approach to transparency in dealing with documentation and reporting by the tobacco industry.

Further, it was consistent with the approach adopted in the US, in the wake of litigation concerning the alleged suppression by the tobacco industry of relevant health information.

Green LJ concluded by waiving any charge for the costs of making the documents available as the application had been delayed by court staff wrongly sending them for destruction. It was eventually discovered that they were still held electronically.

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