ACCESS TO DOCUMENTS DEPLOYED IN COURT: A DETAILED CONSIDERATION
The judgment of Master McCloud in Dring v Cape Distribution Ltd & Anor (Constitution – access to courts – open justice)  EWHC 3154 (QB) considers the issue of whether the public should have access to documents disclosed during the course of court proceedings. Perhaps the most important point of general importance is that litigants have to be told that documents they disclose at trial could become subject to public disclosure.
The applicant sought disclosure of documents that considered what was known, and when, about the product safety of asbestos. The disclosure process involved putting together of extensive quantities or historic material and records relating to asbestos safety and regulation.
“Supply of documents to a non-party from court records
(1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of –
(a) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it;
(b) a judgment or order given or made in public (whether made at a hearing or without a hearing), subject to paragraph (1B).
(1A) Where a non-party seeks to obtain a copy of a statement of case filed before 2nd October 2006 –
(a) this rule does not apply; and
(b) the rules of court relating to access by a non-party to statements of case in force immediately before 2nd October 2006 apply as if they had not been revoked.
(The rules relating to access by a non-party to statements of case in force immediately before 2nd October 2006 were contained in the former rule 5.4(5) to 5.4(9). Practice Direction 5A sets out the relevant provisions as they applied to statements of case.)
(1B) No document –
(a) relating to an application under rule 78.24(1) for a mediation settlement enforcement order;
(b) annexed to a mediation settlement enforcement order made under rule 78.24(5);
(c) relating to an application under rule 78.26(1) or otherwise for disclosure or inspection of mediation evidence; or
(d) annexed to an order for disclosure or inspection made under rule 78.26 or otherwise,
may be inspected without the court’s permission .
(2) A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person.
(3) A non-party may obtain a copy of a statement of case or judgment or order under paragraph (1) only if –
(a) where there is one defendant, the defendant has filed an acknowledgment of service or a defence;
(b) where there is more than one defendant, either –
(i) all the defendants have filed an acknowledgment of service or a defence;
(ii) at least one defendant has filed an acknowledgment of service or a defence, and the court gives permission;
(c) the claim has been listed for a hearing; or
(d) judgment has been entered in the claim.
(4) The court may, on the application of a party or of any person identified in a statement of case –
(a) order that a non-party may not obtain a copy of a statement of case under paragraph (1);
(b) restrict the persons or classes of persons who may obtain a copy of a statement of case;
(c) order that persons or classes of persons may only obtain a copy of a statement of case if it is edited in accordance with the directions of the court; or
(d) make such other order as it thinks fit.
(5) A person wishing to apply for an order under paragraph (4) must file an application notice in accordance with Part 23.
(6) Where the court makes an order under paragraph (4), a non-party who wishes to obtain a copy of the statement of case, or to obtain an unedited copy of the statement of case, may apply on notice to the party or person identified in the statement of case who requested the order, for permission.”
THE MASTER’S CONCLUSION IN THIS CASE
The judgment is 191 paragraphs. Helpfully the judgment contains a summary
“This summary is provided to assist the reader. The main text of judgment prevails in the event of any inconsistency between the summary and the body of the judgment.
Principles and status of the documents in this case
The courts do not merely provide a public service to the ‘users’ who appear before them. Previous cases form the basis of the advice given to those whose cases are now before the courts, or who need to be advised as to the basis on which their claim might fairly be settled, or who need to be advised that their case is hopeless.
Access to a court, being not merely the provision of a service to ‘users’ entails that the parties submitting to the jurisdiction do not have full sovereignty to determine simply by private agreement between themselves the extent to which the public may be made aware of any aspect of the proceedings before the court.
There is an inherent and foreseeable possibility that material deployed in court by the parties, or filed upon the records of the court as part of its process, will form part of the corpus of material which may be deployed in other cases, used for the purposes of legal advice, being academically or journalistically discussed, or considered by Parliament.
The rules and common law jurisdiction to order access to documents by the public
CPR rule 5.4C is the primary means by which the court’s common law power to allow access to documents to the public from the court record is administered but the common law is the master and not the servant of the rules. The rules provide a qualified and controlled system of openness regulated by the court rules in a judicial manner.
Status of the documents
The paper documents other than the bundles were retained in court at the end of trial and held together with the court files, and became documents filed on the records of the court, alternatively the documents other than those in the bundles fall within the court’s general discretion as to access. They were deployed in court and placed before the judge including after he retired to consider his decision. They were subject to what Lord Justice Toulson referred to as the ‘default position’ that access should be given on the open justice principle.
Legitimate interest and intended use
• make the material publicly available,
• by making it available to promote academic consideration as to the science and history of asbestos and asbestolux exposure and production,
• improve the understanding of the genesis and legitimacy of TDN13 and any industry lobbying leading to it in the 1960s and 1970s.
• understand the industrial history of Cape and its development of knowledge of asbestos safety
• clarify the extent to which Cape is or is not responsible for product safety issues arising from the handling of asbestolux boards
• to assist court claims and the provision of advice to asbestos disease sufferers.
Specificity of application and balancing exercise
The degree of specificity which is possible in an application under rule 5.4C must necessarily be limited in practical terms by the fact that without seeing the documents in the first place the best that can be expected so as to assist the court is that general categories of documents be identified unless there is a particular identified document which known about and is sought.
(i) All witness statements
(ii) Experts’ reports
(iii) Transcripts of evidence
(iv) All documents disclosed by Cape and other parties.
i. would be likely to be of academic and scientific interest as part of public and social discourse as to the history of asbestos safety, regulation and knowledge as it developed during the 20th century,
ii. would be likely to be considered by advisers advising parties to asbestos litigation as to the merits of their cases whenever issues arise which touch upon Technical Data Notice 13 and connected Regulations,
iii. is likely to be relevant the product safety of asbestos insofar as understood within the major manufacturers and connected companies as compared with general public at various points in the 20th century, and
iv. is likely to be relevant to the extent to which employer defendants could have been expected to appreciate the risks of asbestos.
Partial access to the documents could lead to ‘cherry picking’ in terms of the publishing of negative material especially if access was only given to material which paints asbestos, and perhaps Cape in a bad light. There is a risk, but a much reduced risk, of cherry picking if access is given less selectively and more rather than less widely.
A requirement for special circumstances is desirable in the case of disclosure documents served but not deployed at trial, in this instance bundle D, to ensure that non-parties are not placed in a better position than parties in relation to unused but served disclosure material. I do not consider that grounds have been made out for disclosure in relation to bundle D.
i. the witness statements including exhibits,
ii. expert reports,
iv. disclosed documents relied on by the parties at trial ie those in the paper bundles only,
v. written submissions and skeletons,
vi. Statements of case to include requests for further information and answers if contained in the bundles relied on at trial.
In formal terms I am therefore allowing the application in relation to document classes (i) to (iii) listed in the statement of Ms Bains dated 6 April 2017 but only partially allowing disclosure of documents in category (iv). I am also allowing disclosure of certain other documents as is apparent from the list just set out.
The Applicant may return to court to seek a decision as to access in respect of any documents in bundle D which it appears upon consideration were omitted from the paper bundles, yet were in fact relied on at court (this ought to be apparent from the documents for which access has been given as above). Bundle D shall remain impounded in court.
The documents subject to disclosure to Mr Dring shall therefore be made available by the court to the Applicant’s solicitor as an officer of the court for copying or scanning upon the giving of an undertaking that documents not within the scope of this order, if contained in the files, will not be copied.