Legal Briefing

You can’t always get what you want

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Dispute resolution | 01 November 2013

Recent cases have illustrated a growing trend of third parties, often themselves involved in litigation, seeking to obtain documents not only from the court file, but also at trial, in relation to other similar or related litigation. This bulletin summarises the law and practice in relation to the different categories of documents that are frequently the subject of disclosure requests or applications by third parties taking advantage of the policy of ‘open justice’; it also addresses the steps which a party to a dispute can take to keep those documents confidential.


OPEN JUSTICE

‘Open justice’ is a fundamental principle of the English judicial system. In R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012], Lord Justice Toulson, described it as ‘a principle at the heart of our system of justice and vital to the rule of law’. The purpose of this policy is to promote confidence in the judicial process by making it as transparent as possible. Litigation is, therefore, conducted in public unless there are strong reasons why justice would be better served by a private hearing.

The principle of open justice extends to allowing third parties to obtain certain documents from the court file. On the one hand, this can cause problems for litigants who may wish to ensure that confidential commercial material is not reported in the press or made available to competitors. On the other hand, the ability to obtain documents from the court file can be very useful for parties who are considering bringing a claim, which is similar or related to another matter that is already before the court. This is common, for example, in banking and finance litigation, where disputes arise out of widely used, standard form documentation and, in the current economic climate, where single events (such as the collapse of Lehman Brothers) have led to disputes between a number of different parties.

STATEMENTS OF CASE

Rule 5.4C(1) of the Civil Procedure Rules (CPR) provides that non-parties may obtain copies of statements of case (formerly known as pleadings) and judgments or orders from the court file without the court’s permission. The term ‘statements of case’ includes the claim form, particulars of claim, defence, reply, counterclaims and responses to ‘Part 18’ requests for further information and any amended versions of those documents. Once all the defendants have filed an acknowledgment of service, the procedure for obtaining a copy of these documents is essentially administrative and amounts to filling in a request form and paying the prescribed fee. Importantly these requests for documents are made without notice to any of the parties involved in the litigation.

The right does not extend to documents filed with or attached to statements of case. Nor does it extend to other documents aimed at confining the issues, such as notices to admit and responses to notices to admit (Various Claimants v News Group Newspapers Ltd [2012]). One way to restrict public access to confidential information may be to put any particularly sensitive material in a schedule to a statement of case. However, given the importance of the principle of open justice, judges are likely to be wary of any attempt to abuse this rule and, where the circumstances justify it, the safer approach may be to make an application to restrict access to a statement of case (see below). In any event, third parties can still make an application to obtain other documents filed with a statement of case (see below).

APPLICATIONS TO RESTRICT 
ACCESS TO STATEMENTS OF CASE

Parties involved in litigation can apply to the court, under CPR 5.4C(4), to restrict public access to statements of case (but not a judgment or order given or made in public). The court has broad powers to deal with such applications. It can provide that non-parties may not obtain statements of case but it can also impose more limited restrictions, such as requiring documents to be edited or redacted before being provided to third parties or limiting the persons or classes of persons who are entitled to obtain copies.

However, as it involves a derogation from the principle of open justice, the court will not restrict access to statements of case lightly. In Various Claimants v News Group Newspapers, Vos J held that there is a presumption that third parties (including the press) should be entitled to see statements of case. Therefore the burden of proof will be on the applicant to persuade the court that there are exceptional circumstances which justify a derogation from the principle of open justice. The reasons why a third party might want to obtain copies of statements of case are of little or no importance unless they are sought for an improper purpose.

In G & G v Wikimedia Foundation Inc [2009], it was held that restrictions on public access will only be made where they are necessary and proportionate. Furthermore, any such restrictions should be limited to the minimum necessary to protect the relevant material. For example, the court will not make an order preventing non-parties from obtaining statements of case where sufficient protection could be afforded by redacting or anonymising the relevant documents.

CPR 5.4C(6) provides that a non-party may, notwithstanding any restrictions that may have been imposed, apply to the court to obtain an unedited statement of case and most orders imposing restrictions will expressly provide for this. In National Policing Improvement Agency v Total Downstream UK plc & ors [2009], the judge noted that there may be considerations, of which the court was unaware when making the order, which would mean that at some later date the court may consider that the documents should be made publicly available. Any application to remove restrictions must be on notice to the party which requested them.

OTHER DOCUMENTS ON THE COURT FILE: GENERAL CONSIDERATIONS

CPR 5.4C(2) also provides for non-parties to obtain documents other than statements of case (including correspondence between the court and the parties) but this does require the court’s permission. An application under this rule can be made without notice, but the court may direct that notice should be given to any person who would be affected by its decision.

There have been a number of recent cases in which the application of CPR 5.4C(2) has been considered1. From these cases, it is possible to derive the following general principles.

In contrast to the position under 5.4C(1) (third-party access to statements of case), there is no presumption that disclosure of the requested documents should be permitted.

The court should consider the reasons why the documents are sought and the use to which they will be put.

CPR 5.4C(2) only applies to documents that have been filed with the court, which will not necessarily include all documents referred to at trial.

There is a distinction between (1) documents which have been read in open court and (2) other documents which, though filed at court, have not been read by the judge. Anyone with a legitimate interest in documents falling within the first category should normally be allowed to have them. However, documents falling within the second category should not be made available as a matter of routine, but only if there are strong grounds for thinking that access to them is necessary in the interests of justice.

An interest in similar or related litigation can constitute a legitimate interest in obtaining documents from the court file.

The court will be more willing to give a non-party access to documents that relate to ongoing litigation than to documents relating to historic litigation. This is because open justice is primarily concerned with monitoring the decision-making process as it takes place, not with reviewing the process after the event. However, the fact that a piece of litigation has come to an end is not an absolute bar to disclosure of documents from the court file.

An applicant must adequately identify the documents, or classes of document it wishes to obtain. CPR 5.4C(2) does not entitle the applicant to inspect the whole file or conduct a ‘fishing expedition’.

The procedure should not in general 
be used for obtaining documents 
which are otherwise available from 
public sources.

When deciding whether to provide a 
non-party with documents from the court file, the court will balance the non-party’s reasons for wanting the documents against the interests of the party that filed the documents in restricting access to those documents. As part of this exercise, the court may order that redacted or anonymised versions of the documents be provided to the non-party or that the documents be provided subject to other restrictions. For example, in HSH Nordbank AG, London Branch v Saad Air (A320 No.2) Ltd & anor [2012], Field J ordered that a third party be provided with a copy of an application for summary judgment and supporting evidence, subject to the third party undertaking only to use those documents for the purpose of related legal proceedings.

PARTICULAR CATEGORIES OF 
DOCUMENTS ON THE COURT FILE

As well as the general considerations identified above, particular issues will arise in the context of applications to obtain copies of certain types of document.

Witness statements

CPR 5.4C(2) only entitles non-parties to obtain documents ‘from the records of the court’. Arguably, CPR 5.4C(2) does not apply to witness statements if they are exchanged between the parties but not filed at court (even if they are subsequently included in the trial bundles). Thus, in British Arab Commercial Bank v Algosaibi Trading Services Ltd [2011], Flaux J said that ‘witness statements do not form part of the court record or court file in the Commercial Court’, such that CPR 5.4C(2) did not apply.

However, the position is likely to be different where witness statements are placed on the court file. This may happen because the court exercises its power, under CPR 32(3)(b), to order that witness statements should be filed at court (as opposed to just being exchanged between the parties) or because, in the absence of such an order, the parties nevertheless decide to file their witness statements. Witness statements made in support of an interim application will usually be filed at court. In these circumstances, CPR 5.4C(2) will apply. In Pfizer Health Ab v Schwarz Pharma Ag [2010], for example, the court allowed a non-party to take copies of witness statements made in support of an application for directions.

Non-parties who wish to gain access to witness statements that have not been filed at court, may be able to rely on CPR 32.13(1), which provides that:

‘A witness statement which stands as evidence in chief is open to inspection during the course of trial unless the court otherwise directs’.

The difficulty with this provision is that 
it is limited to ‘inspection during the course of trial’. Strictly construed, therefore, 
CPR 32.13(1) does not appear to give 
non-parties the right to obtain copies of witness statements that they can take away with them or to have access to witness statements in advance of the trial or after it has concluded.

However, this strict approach arguably undermines the purpose of CPR 32.13(1), namely to enable non-parties to follow what is said in court. The production of witness statements removes the need for a witness to give live ‘evidence-in-chief’ at trial. After a witness has been sworn in and confirmed the truth of their witness statement, they will be cross-examined by the other side’s counsel. It is likely to be difficult for a non-party to follow what is said in cross-examination if they have not had a prior opportunity to read the witness’s statement. It is suggested, therefore, that judges will take a common-sense approach to this issue and, where appropriate, exercise their inherent jurisdiction to make an order that witness statements be provided to non-parties before witnesses go into the witness box. This is supported by the comment of Flaux J in British Arab Commercial Bank v Algosaibi that:

‘… in the context of a situation where it is anticipated that the witness will give evidence… the court would have had an inherent jurisdiction to say it is appropriate that [a non-party] should have the witness statements now before the witnesses go into the witness box so they do not have to be produced on a piecemeal basis.’

It also appears that the court has an inherent jurisdiction to order that non-parties be provided with copies of witness statements after conclusion of the relevant trial. For example, in Nestec SA & ors v Dualit Ltd [2013], Birss J ordered that a non-party be provided with copies of expert reports referred to at an earlier trial.

In British Arab Commercial Bank v Algosaibi, Flaux J expressly said that CPR 32.13(1) does not apply to exhibits and that non-parties were not entitled to them. More recently, in Nestec v Dualit Ltd, Birss J took a similar approach, holding that documents, which were exhibits to evidence or were documents which were put to witnesses during the course of cross-examination at the trial, raise different questions from access to witness statements. Such documents were not within the scope of CPR 32.13 and the court had no inherent jurisdiction to order that they be provided to third parties.

Trial bundles

In GIO Personal Investment Services Ltd v Liverpool and London [1999], Potter LJ said that members of the public were not entitled to be provided with copies of the trial bundles. Flaux J quoted Potter LJ and took the same approach in British Arab Commercial Bank v Algosaibi. In Nestec v Dualit, Birss J, also referring to GIO Personal Investment Services Ltd, made the point that documents which have been referred to in open court will pass into the public domain in the sense that they cease to be confidential and that parties present in court could refer to those documents without restriction but this did not mean that the public had the right to make or take away copies of them.

As the law stands, therefore, non-parties are not entitled to copies of trial bundles. On a practical level, requiring the court, or the parties, to provide copies of (often voluminous) trial bundles to (potentially) multiple non-parties would be to impose a significant burden.

Skeleton arguments

Like unfiled witness statements, skeleton arguments arguably do not form part of the ‘records of the court’. However, even if CPR 5.4C(2) does not apply, the court has the power, under its inherent jurisdiction, to order that skeleton arguments be provided to non-parties2. In R (Davies, James and Gaines-Cooper) v HM Revenue & Customs [2010], Ward LJ ordered the parties’ skeleton arguments to be provided to a non-party, saying that:

‘… since skeletons are part of the argument and are referred to in open court and are available to the law reporters I can see no reason for withholding them’.

Court orders

As explained above, non-parties are entitled to copies of orders handed down at a public hearing and it is not possible to make an application under CPR 5.4C(4) to restrict public access to such orders. However, it is possible, in exceptional circumstances, to apply under CPR 39.2(3) for a hearing to be held in private, in which case a non-party will need the trial judge’s permission to obtain a copy of an order.

Parties involved in litigation can agree to settle those proceedings by means of a consent order, which would generally be available to a third party under CPR 5.4C(1). However, a form of consent order known as a Tomlin order can be used to keep the agreement confidential. The settlement terms are set out in an attached schedule which does not form part of the body of the order and is therefore not available as of right to members of the public. However, there is a risk that court staff may include the attached schedule when non-parties have requested copies of the Tomlin order. Sometimes it may be possible to persuade the judge or master that the schedule does not need to be kept on the court file. Failing this, it is advisable to ask the court to 
direct that the schedule detailing the 
terms of the settlement is not to be available to non-parties and that the schedule must be put in the court office safe in an envelope marked ‘not for disclosure without permission of the court.’

APPROACHING THE PARTIES DIRECTLY

CPR 5.4C is concerned with obtaining documents from the court file. In order to avoid the uncertainty and expense of a court application, it may be worth asking the parties themselves to provide copies of documents. The question of whether it will be necessary to approach one or all the parties will depend on the type of document sought and the stage that proceedings have reached. In very broad terms, a party cannot agree to provide a non-party with the other side’s disclosure or witness statements unless and until those documents have been read in open court.

It will often be in the interests of the parties to agree to provide at least some of the requested documents because this will enable them to retain control over the process, for example, by limiting the documents to be provided and requiring them to be returned at the conclusion of the trial. The parties will also wish to be seen to be acting reasonably as this will strengthen their position if an application is subsequently made to the court.

However, parties to a dispute should be careful about providing documents to non-parties before they are obliged to do so. In British Arab Commercial Bank v Algosaibi, a party was ordered to provide copies of witness statements to a non-party despite the fact that the case settled and the witnesses were never called to give evidence. This was because the party had agreed to do this when the judge raised the issue at the beginning of the trial (before settlement was reached). The judge said that the party had ‘sold the pass’ in failing to object to the provision of witness statements to the third party when the issue was first raised.

By Barry Donnelly, partner, and 
Jonathan Pratt, professional support lawyer, Macfarlanes LLP.

E-mail: barry.donnelly@macfalanes.com; 
jonathan.pratt@macfarlanes.com.

Notes


  1. See, in particular, Various Claimants v News Group Newspapers Ltd [2012], Paul Sayers & ors v Smithkline Beecham plc & ors [2007]; ABC Ltd v Y [2010] and Pfizer Health Ab v Schwarz Pharma Ag [2010].
  2. See, for example, GIO Services v Liverpool and London.