This blog is by James Beeton.

This morning, Lady Hale handed down the Supreme Court’s judgment in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38. The decision contains a detailed analysis of the court’s power to allow third parties access to court documents under the constitutional principle of open justice. However, the outcome is also of great practical significance for practitioners involved in claims for asbestos-related injury against the Cape group of companies (and, indeed, many other defendants).

Background

In January and February 2017, Picken J heard evidence in a six-week trial under the name Concept 70 v Cape International Holdings Ltd. The trial involved proceedings brought against Cape by insurers who had written employers’ liability policies for employers. The employers had paid damages to former employees who had contracted mesothelioma in the course of their employment. The employers, through their insurers, then claimed a contribution from Cape on the basis that the employees had been exposed at work to asbestos from products manufactured by Cape. After the trial had ended, but before judgment was delivered, the claims were settled.

The Asbestos Victims Support Groups Forum UK then made an application under CPR r. 5.4C, which deals with third party access to the “records of the court”, with a view to preserving and obtaining copies of all the documents used at or disclosed for the trial, including the trial bundles and the trial transcripts. The Forum considered that the disclosure was likely to have significant implications for asbestos-related claims involving the Cape group of companies, the provenance and impact of TDN 13, and broader historical knowledge arguments in respect of the asbestos industry as a whole.

First Instance

After a three-day hearing, Master McCloud held in Dring v Cape Distribution Ltd [2017] EWHC 3154 (QB) that she had jurisdiction to order that a non-party be given access to all the material sought. She therefore ordered that Mr Dring (acting on behalf of the Forum) should be provided with the hard copy trial bundle, including the disclosure documents in the parties’ core bundle, all witness statements, expert reports, transcripts and written submissions.

Court of Appeal

Cape successfully appealed this order to the Court of Appeal ([2018] EWCA Civ 1795). The Court of Appeal held that the “records of the court” for the purpose of the discretion to allow access under CPR r. 5.4C(2) were much more limited than the Master had ordered. They would not normally include trial bundles, trial witness statements, trial expert reports, trial skeleton arguments or written submissions, or trial transcripts.

The court had an inherent jurisdiction to permit a non-party to obtain certain further documents. But, importantly, there was no inherent jurisdiction to permit non-parties to obtain trial bundles or documents referred to in skeleton arguments or written submissions, or in witness statements or experts’ reports, or in open court, simply on the basis that they had been referred to in the hearing.

The Court of Appeal ordered, in summary:

1. That the court should provide the Forum with copies of all statements of case, including requests for further information and answers (apart from those listed in an Appendix to the order);
2. That Cape should provide the Forum with copies of witness statements, expert reports and written submissions (listed in a further Appendix to the order); and
3. That Picken J (or some other High Court Judge) should decide whether any other document sought by the Forum was properly accessible on the basis that confidentiality had been lost under CPR r. 31.22 and the judge had read or been invited to read to read it, or that it was necessary for the principle of open justice (on the limited understanding of the court’s inherent jurisdiction set out above).

Supreme Court

Both parties appealed to the Supreme Court. Cape argued that the Court of Appeal did not have jurisdiction to make the order that it did. The Forum argued that the court should have made a wider order under CPR r. 5.4C(2).

Lady Hale, who delivered the judgment of the Supreme Court, disagreed with both parties. Not only did the Court of Appeal have jurisdiction to make the order that it did, but it also had jurisdiction to make a wider order if it were right so to do. On the other hand, contrary to the submission of the Forum, the basis of making any wider order was the court’s inherent jurisdiction in support of the open justice principle, and not CPR r. 5.4C(2).

Lady Hale considered that the open justice principle applied to all courts and tribunals exercising the judicial power of the state. It had two purposes: (i) to enable public scrutiny of the way in which courts decide; (ii) to enable the public to understand how the justice system works and why decisions are taken. The latter was particularly important given shift in modern times to reliance on purely written evidence and arguments.

The CPR were not exhaustive of the circumstances in which non-parties could be given access to court documents: they were a minimum in addition to which the court had to exercise its inherent jurisdiction under the constitutional principle of open justice.

Pursuant to that principle, 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 had been placed before the court and referred to during the hearing.

However, it was also necessary to balance the public interest in allowing access with other countervailing considerations, such as any risk of potential harm caused by the disclosure and any contrary practical considerations. “In short,” said Lady Hale at [47], “non-parties should not seek access unless they can show a good reason why this will advance the open justice principle, that there are no countervailing principles of the sort outlined earlier, which may be stronger after the proceedings have come to an end, and that granting the request will not be impracticable or disproportionate.”

Since Cape had not attacked the Court of Appeal’s order on its merits, the Supreme Court ordered that the Court of Appeal’s order for access to the various documents set out above would stand, but that, instead of (3) above, the case would also be sent back to a High Court judge (again, preferably Picken J) to determine whether the court should require Cape to provide copies of any other documents in accordance with the broader understanding of the open justice principles set out by the Supreme Court.

The Court of Appeal judgment therefore represents a “baseline” against which permission for access to further documents can (and no doubt will) be sought. The Supreme Court judgment is not the end of the road, but requires the High Court to consider whether further access is required pursuant to the open justice principle as described by Lady Hale. Asbestos practitioners would be well-advised to keep an eye on these proceedings once they are referred back to the High Court. It will be of significant interest to see which (if any) further documents are released.