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, the Supreme Court has ruled.
Giving the unanimous decision of the court, president Lady Hale said this was the “default position”, but that non-parties should not seek access unless they can show a good reason why it will advance the principle of open justice.
Further, she said, there should be no countervailing principles, which may be stronger if the application is made after the proceedings have come to an end, and granting the request should not be impracticable or disproportionate
The court was ruling in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK)  UKSC 38, in which 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.
At first instance, Master McCloud held that she had jurisdiction, either under CPR rule 5.4C(2) or at common law, to order that the forum should be given access to the trial bundle.
In a leapfrogged appeal by Cape, the Court of Appeal limited the disclosure to the statements of case held by the court pursuant to CPR 5.4C and the provision by Cape of witness statements, expert reports and written submissions.
The court ordered that the application for further disclosure be listed before the trial judge to decide whether any other documents had lost confidentiality and had been read out in court or by the judge, or where inspection by the forum was necessary to meet the principle of open justice.
Cape appealed and the forum cross-appealed to the Supreme Court, arguing that the appeal court had been, respectively, too generous and too limited.
The Supreme Court rejected both appeals. Giving a unanimous ruling, president Lady Hale stressed the importance of open justice and said the “default position” was that the public should be allowed access, not only to the parties’ written submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing – whether or not they have been read by the judge.
She continued: “However, although the court has the power to allow access, the applicant has no right to be granted it (save to the extent that the rules grant such a right). It is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle.
“In this respect it may well be that the media are better placed than others to demonstrate a good reason for seeking access. But there are others who may be able to show a legitimate interest in doing so.”
She said the court has to carry out a fact-specific balancing exercise: “On the one hand will be ‘the purpose of the open justice principle and the potential value of the information in question in advancing that purpose’.
“On the other hand will be ‘any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others’.”
Lady Hale added that it was “highly desirable” for any application to be made during the trial; the difficulty of doing it afterwards could affect the proportionality of the exercise. She also said marked-up bundles could only be disclosed with the consent of the person holding it.
She concluded: “The Court of Appeal not only had jurisdiction to make the order that it did, but also had jurisdiction to make a wider order if it were right so to do.
“On the other hand, the basis of making any wider order is the inherent jurisdiction in support of the open justice principle, not the Civil Procedure Rules, CPR rule 5.4C(2). The principles governing the exercise of that jurisdiction are those laid down in Guardian News and Media, as explained by this court in Kennedy, A v British Broadcasting Corpn and this case.”
Lady Hale ordered that the application be listed before Mr Justice Picken – who presided over the original trial – to determine whether the court should require Cape to provide a copy of any other document placed before him and referred to in the course of the trial to the forum (at its expense) in accordance with the principles laid down by the ruling.
In a postscript, Lady Hale said: “We would urge the bodies responsible for framing the court rules in each part of the United Kingdom to give consideration to the questions of principle and practice raised by this case.
“About the importance and universality of the principles of open justice there can be no argument. But we are conscious that these issues were raised in unusual circumstances, after the end of the trial, but where clean copies of the documents were still available.
“We have heard no argument on the extent of any continuing obligation of the parties to co-operate with the court in furthering the open justice principle once the proceedings are over.
“This and the other practical questions touched on above are more suitable for resolution through a consultative process in which all interests are represented than through the prism of an individual case.”
Harminder Bains, the partner at Leigh Day acting for the forum pro bono, said: “This is a landmark decision for access to documents to non-parties and a victory for open justice. I hope it will help shed a light on all manner of issues, including the deadly asbestos industry.”
Mr Dring said: “It is only right that documents which could help sufferers of asbestos-related diseases secure justice should be made available to the support group.
“During this court case thousands of people have died in the UK from mesothelioma, asbestos-related lung cancer and asbestosis. Many of these deaths will have been of former Cape workers or workers who have used Cape products.
“If it were not for our lawyers prepared to take on our case pro bono against Cape with its huge financial resources these documents would still not have seen the light of day.”
Counsel representing Mr Dring, also on a pro bono basis, were Robert Weir QC, Jonathan Butters and Harry Sheehan of Devereux Chambers.
Due to the implications of the court case to journalists, the Media Lawyers Association successfully applied to intervene in the case.