This post was written by Christopher Fleming.
This decision arises from the Asbestos Victims Support Groups Forum UK’s application under CPR 5.4C to access documents that had been produced by Cape in a previous set of proceedings to which the Forum had not been a party.
The application came before the Supreme Court in 2019 (see James Beeton’s blog post on the Supreme Court’s decision here, as well as his post on the Master’s decision at first instance here ).
Delivering the judgment of the Supreme Court, Lady Hale upheld the Court of Appeal’s decision that the Court should provide the Forum with copies of the parties’ statements of case and that Cape should provide copies of witness statements, expert reports and written submissions. However, she ordered that the matter be sent back to a High Court judge, preferably Picken J (the trial judge in the previous proceedings) to determine whether the Court should require Cape to provide copies of all the other documents placed before the Judge and referred to in the course of the trial. This represented some 5,000 pages of documents contained in around 17 lever arch files.
The Forum duly applied to Picken J under CPR 5.4C. Picken J set out what he considered to be the correct application of the Supreme Court’s decision:
- The Supreme Court’s decision should be regarded as having restated the open justice principle in a way which no longer makes it necessary to apply the ‘legitimate interest’ approach [¶61]. Put differently, whether an applicant has a legitimate interest in inspecting the document is no longer a significant factor in the court’s determination of such applications.
- A third party making such an application should not merely show that access to documents would be in accordance with the open justice principle but also that such access would advance the open justice principle [¶78].
- This is not a ‘prior hurdle’ to such an application, but rather a ‘sliding scale’. Where a particular case appears on that ‘sliding scale’ will depend on a range of factors, including whether access to the documents will advance the open justice principle and, if so, consistent with the concept of a ‘sliding scale’, to what extent. The Court should engage in the balancing exercise and, in so doing, accord appropriate weight to the various different factors. The fact that a third party is seeking documents for collateral purposes which have only a limited connection with advancing the open justice principle will be a factor which will weigh less heavily in the appropriate balancing exercise than if the position were otherwise and the documents sought would more significantly advance the open justice principle [¶81].
He went on to refuse the Forum’s application for the following reasons:
- The documents sought were clearly not required by the Forum in order to understand what the issues in the underlying proceedings were and what the evidence concerning those issues constituted [¶98].
- No evidence was adduced to show how such documents would advance the open justice principle. The focus of the evidence was rather on seeking to establish a ‘legitimate interest’, which, as already noted, was no longer the relevant question [¶99].
- As per the approach explained by Lady Hale, it is incumbent upon an applicant to justify its application by reference to the open justice principle. He found that the Forum had not done so adequately [¶100].
- Tellingly, the Forum already had documents, in the form of experts’ reports and the written opening and closing submissions, which enable it to understand the issues and the evidence adduced in support of the parties’ cases. [¶101].
- The real motivation behind the application was a concern on the part of the Forum that it would be more useful from an evidential perspective were the documents to be available for use in other litigation. In that sense, the Forum was effectively making a third-party disclosure application in relation to other proceedings, but seeking to do so without regard to the constraints to which a genuine disclosure application would be subject [¶115]. The CPR have clear provisions for the obtaining of documents.
- It was the Forum’s avowed intention that the documents should be used in other proceedings. Regard should be had to the fact that Cape would have no ability in such proceedings to put forward any explanation as to particular documents [¶118]
- Had the Forum sought production of the relevant documents at trial on the same basis, Picken J was clear that the Court would have declined to order production [¶120].
While obviously interesting from a legal standpoint, particularly to keen observers of the principle of open justice, this decision is of practical significance to those seeking to pursue asbestos-related claims involving the Cape group of companies. The effect Picken J’s decision is that no further documents shall be provided by Cape to the Forum beyond those which fell within the scope of the Order made by the Court of Appeal in 2018.
Read the decision in full here.