New changes to the CPR allow greater access to documents held on the court file.

The current position

  • Non-parties to an action are only entitled to obtain from the court copies of served claim forms and any judgments or orders made in public. A document referred to in open court generally will become publicly available thereafter.

  • If non-parties wish to obtain copies of any other documents they must make a formal application to the court.

  • The parties may make an application for access to their documents to be restricted, although, in practice, this is rare.

From 2 October 2006

  • Non-parties may access any statement of case (pleading) filed at court without the need to make a formal application.

  • CPR 5.4C states that:

(1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of-

(a) 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

(b) a judgment or order given or made in public (whether made at a hearing or without a hearing)

For reference, CPR 2.3 (1) says :- 'statement of case'-

(a) means a claim form, particulars of claim where these are not included in a claim form, defence, Part 20 claim, or reply to defence; and

(b) includes any further information given in relation to them voluntarily or by court order under rule 18.1;
  • Witness statements are excluded from the new provisions.
  • The new provisions will have retrospective effect and will apply to statements of case filed in past actions if the court still has the statement of case on the court file. The court file is usually kept for five years after the conclusion of the matter.
  • Parties will only be able to prevent access by application to restrict access to the court file; it is likely that the court will decide that on the basis of whether such restriction would be in the public interest.

What does this mean for you?

  • Court based litigation is not a private process; all documents on the court file, whether confidential, sensitive or otherwise may be disclosed to non-parties.
  • We will carefully consider with you how a case is to be pleaded with the new regime in mind.
  • If you are concerned about the confidentiality of existing pleadings, we can consider an application to secure them confidentially.