Supreme Court to rule on third-party access to court documents

Supreme Court: Documents decision

The Supreme Court is to rule on judges’ powers – pursuant either to the CPR or its inherent jurisdiction – to permit third parties access to documents used in litigation.

It has granted an appeal from the Court of Appeal’s decision in Cape Intermediate v Dring on an order to access documents from the case sought by the Asbestos Victims Support Groups Forum UK.

The hearing has been listed for 18 February for one and a half days.

The forum understood that the documents shed light on the asbestos industry’s knowledge of the dangers of asbestos and its influence over government standards.

The parties agreed that the court had an inherent jurisdiction to provide “certain materials to non-parties”. Cape argued it was limited by case law and the CPR to skeleton arguments and written submissions only, while the forum submitted that the powers were much broader.

The Court of Appeal said the case raised the proper balance to be struck between the application of the principle of open justice and policy considerations concerning the proper and efficient administration of justice.

The cases had settled after trial but before judgment. Master McCloud allowed the forum’s application, and Cape’s appeal was leapfrogged to the Court of Appeal.

The Court of Appeal allowed the appeal, holding that, for the purposes of CPR 5.4C(2), “records of the court” did not extend to witness statements, expert reports, trial bundles, transcripts or written submissions (all of which were subject to Master McCloud’s original order). The forum is appealing this.

At the same time, the court held that the court has inherent jurisdiction to allow non-parties inspection of (i) witness statements; (ii) expert reports; (iii) documents, which were read out in open court, the judge was invited to read in or outside of court or which it is clear or stated that the judge has read; (iv) written submissions deployed at hearing; and (v) any specific documents which it is necessary for a non-party to inspect in order to meet the principle of open justice.

Cape is appealing this part of the decision.

Comment on the Court of Appeal ruling suggested that it would restrict the scope of what may otherwise have become commonplace applications by claimant firms to inspect documents in settled cases.

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