UK: The Impact Of Non-Party Access To Court Documents

Statutory Instrument 2006/1689 – the Civil Procedure (Amendment) Rules 2006 - comes into effect on 2 October 2006. Its effect is to amend Rule 5.4 of the CPR to widen access that the public (including the press) may gain to court documents and, in particular, pleadings.

The current position

Up to October 2005, only the Claim Form (and Particulars of Claim if attached) was available to all without restraint. In October 2005 the CPR changed and this right was restricted.

Rule 5.4 of the CPR and the related Practice Direction provide for certain courts to keep a publicly accessible register of claims. In relation to third party access to court documents rules 5.4(5) – (7) provide that, unless the Court orders otherwise, a third party can only obtain a copy of the Claim Form, but not any documents attached to it, in proscribed circumstances. Namely, if all defendants have acknowledged service or filed a defence, if the claim has been listed for a hearing or where judgment has been entered. Further, the Court may restrict even this access on application of a party identified in the Claim Form.

The position from 2 October 2006

The Statutory Instrument will amend the CPR, reversing the current position. Statements of Case (which definition covers Claim Forms and pleadings) will be released to third parties unless the Court orders that they should not be. The rule change is the result of a successful lobbying campaign from the press who criticised the 2005 amendment as being contrary to the principle of open justice.

The CPR will be amended with the addition of rule 5.4(C). Rule 5.4(C)(1) will state that: "a person who is not a party to proceedings may obtain from the court records a copy of 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".

New rule 5.4(C)(4) will provide that Statements of Case will be available only where all of the defendants have filed an acknowledgment of service or a defence.

Parties identified in a Statement of Case will be able to apply to the court to deny access to non-parties or restrict the persons or classes of persons who may obtain a copy of Statements of Case. The Court will be able to make various orders, including preventing access altogether. However, the new rule does not provide any guidance as to the criteria the Court may take into account to decide to restrict disclosure of a document. In its wide discretion, the Court will nevertheless need to take account of the overriding objective (CPR Part 1) and the Human Rights Act 1998.

Finally, the Statutory Instrument does not state whether it will have a retrospective effect. In the absence of any express rule, it therefore appears that unless there has previously been an order restricting access, non-parties will be able to gain access to Statements of Case filed prior to 2 October 2006. This is an important consideration for those parties to litigation who do not wish the press to have access to pleadings that previously were protected. This is particularly in light of the fact that the publisher of defamatory material contained in a Statement of Case obtained from the Court will be protected by qualified privilege, as long as the matter is of public concern and for public benefit, and as long as there is no malice involved.

It is submitted that this change to the CPR has two results. Firstly, litigants as a matter of course must now consider whether they should make an application to the Court for restricted access to the parties’ Statements of Case once proceedings are commenced. Secondly, if the new rules are utilised by the public and the press it will be interesting to see whether this amendment leads to an increased use of arbitration.

To read further articles and papers from Fenwick Elliott, please visit our website - www.fenwickelliott.co.uk

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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