The long-running case of Cape v Dring has been used to test out the important question of when documents generated or disclosed in the course of litigation can be accessed by third parties. It finally came to an end via a Supreme Court decision in July 2019.
The underlying proceedings at issue concerned the liability of Cape for the alleged exposure of some of its employees to asbestos in the course of their employment. Those proceedings were settled after trial but before judgment. A third party non-profit organisation, the Asbestos Victims Support Group, then brought an application seeking access to the entirety of the bundles that had been used at the trial, with a view to using the information they contained to support other potential victims of asbestos exposure.
There were two legal bases for the application:
● CPR 5.4C, which provides that a third party may, with the court's permission, obtain a copy of
any document held on the "records of the courts"; and
● an unwritten "inherent jurisdiction" of the court to grant third party access to documents
generated or disclosed in the course of litigation.
Lower Court decisions
Master McCloud at first instance took a very broad approach and gave the support group immediate
access to all of the paper trial bundles from the prior litigation (but not an additional electronic trial bundle which comprised the entirety of the documents disclosed by the parties, whether or not relied upon at trial).
The Court of Appeal, however, took a much narrower and more technical approach. It considered that the court's jurisdiction under CPR 5.4C doesn’t take a third party very far: it extends only to those documents that the court retains on file in relation to a case for its own administrative purposes (which are in fact quite limited, and don't for the most part include trial bundles, witness statements, expert reports or skeleton arguments).
It also considered the court's inherent jurisdiction effectively to extend only to documents which had been read or should be treated as having been read by the judge. That meant going through the trial bundles and making fine distinctions on a document by document basis as to whether that was the case. The simple inclusion of a document in a trial bundle wouldn't of itself be enough to get it across the line. A mere reference to a document in another document which a third party was entitled to access would not be enough either.
The Supreme Court's decision
The Supreme Court has now reverted back to something closer to the Master's original broad brush approach. While it agreed with the Court of Appeal's narrow interpretation of CPR 5.4C, it considered that the court's inherent jurisdiction to grant third party access essentially extends to all documents which are "placed before the court and referred to during a hearing". This appears to be a broader test than whether a document has been read or ought to be treated as read by the judge, and could it seems theoretically include both the trial bundles in their entirety and documents which are merely referred to in other documents which are clearly themselves accessible.
The fact that the court has jurisdiction to grant access to a document does not mean that it will always do so: it also has a discretion to decline to exercise that jurisdiction where appropriate, which it will generally do if the parties' reasons for seeking to withhold access outweigh the reasons why the third party is seeking it. However, the Supreme Court has now strongly re-emphasised that, when conducting that balancing test, the courts must always keep in mind the principles of open justice and the critical importance of enabling public scrutiny of the judicial process. That is particularly so in a world where oral arguments have to a large degree been replaced by written arguments, which cannot properly be followed by third parties unless they have access to the relevant written materials.
The Supreme Court also gave some useful practical tips for third parties applying for access to documents: whenever possible, such applications should be made while the hearing or trial at issue is still underway, and the underlying materials are still readily available. In those circumstances, a clean copy of the trial bundles may well be the most practicable way of granting a third party access to the materials in question. However, the courts will not grant access to copies of trial bundles that have been marked up by advocates and others, unless consent is given by the person whose bundle it is. Applications made after a hearing or trial has concluded, when the burden of retrieving relevant materials will have become much greater for the parties, are less likely to meet with success.
Overall, the effect of this decision is likely to be that the pendulum is now tipping towards wider third party access being granted. However, even the Supreme Court recognised that the current procedural rules in this area are inadequate, and that given their importance, they would ideally be reviewed and revised as part of the usual consultative process, rather than parties having to rely on case law which is inevitably open to interpretation.