UK: Public Access To Court Documents: Confidentiality Preserved For Documents Filed Before October 2006

Last Updated: 14 December 2006
Article by Alistair Mann and Angela Pentland
Public Access to Court Documents: Confidentiality preserved for documents filed before October 2006


The Law Society announced on 28 November 2006 that the recent changes to the Civil Procedure Rules (‘CPR’), which would have allowed non-parties to litigation to obtain copies of statements of case filed in proceedings before the changes came into force on 2 October 2006, will be amended by the Civil Procedure Rules Committee so that they only apply to those statements of case filed in proceedings on or after 2 October 2006. This decision will no doubt be welcomed by litigants who had filed documents before October with the expectation that they would remain confidential.


Under the old rules a person who is not a party to proceedings (a ‘non-party’), for example, a member of the press, could obtain a copy of a claim form from the court file (unless a court order prohibiting access to it was in place) but not the documents filed with or attached to or intended by the claimant to be served with the claim form. Claim forms usually only contain very limited information regarding the claim itself and the substance of the case is normally set out in a separate document (Particulars of Claim) and this document, along with other statements of case and court documents, were unavailable to the public under this rule unless they applied to and were granted permission to access those documents by the court.

The Civil Procedure (Amendment) Rules 2006 came into force on 2 October 2006. The new Rule 5.4C allows non-parties to obtain copies of any statements of case on the court file (or judgments or orders given or made in public) without the court’s permission. Statements of case include, in addition to the claim form, particulars of claim, defence (and any additional claims brought by the defendant), reply and replies to requests for further information. The new rule does however exclude access to any documents filed with, attached to, or intended to be filed or served with such statements of case unless the court gives permission. For example, a copy of a contract that a claimant alleges has been breached might be attached to the particulars of claim but would not automatically be available to the public under this rule.

A party or any person identified in a statement of case can restrict access to such documents by applying to restrict the persons or classes of persons who may obtain a copy of a statement of case or order that only a redacted version be obtained. Unfortunately neither the new rule nor its practice direction provide guidance on what factors a court will take into consideration when deciding whether to grant such an order. It appears that the courts will have a wide discretion and they are likely to take into account factors such as the confidential nature of the documents and the damage that might be done to a party if they were made available to the public. A non-party may still apply to the court to obtain a statement of case subject to such a restriction.

The DCA’s motives for introducing these changes stem from a desire to promote openness and public confidence in the court system. They believe that the increased exposure of court documents to the public eye operates as a check on judicial decision making and a safeguard for the rights of the public.

The Proceedings

Despite indications from the Department of Constitutional Affairs ("DCA") that the new Rule 5.4C was not intended to apply retrospectively, the rule as drafted did not prevent a non-party applying for copies of court documents filed before 2 October 2006. The Law Society applied for, and obtained on 29 September 2006, an interim injunction preventing the new rules from applying retrospectively pending a full judicial review of the matter. A hearing was listed for 28 November but the Law Society withdrew its judicial review claim following a commitment by the DCA that Rule 5.4 would shortly be amended so as not to apply to statements of case filed prior to 2 October 2006. As part of the settlement the DCA have agreed to pay the Law Society’s costs.

Desmond Hudson, Law Society Chief Executive said in the Law Society’s press announcement that:

"The decision by the Rules Committee has entirely vindicated the Law Society’s legal action and has demonstrated that the Society is able to act quickly and efficiently in representing the interests of the public and its members. This decision should be particularly welcomed by City of London firms which frequently represent parties in high profile litigation where an element of confidentiality is essential".

The statutory instrument amending the rule has been approved by Parliament and is expected to come into effect on 18 December 2006. In the meantime, the interim measures will remain in force preventing the disclosure to non-parties of statements of case filed before 2 October.


The privacy of clients who had filed statements of case at court before 2 October in the belief that they would remain confidential has been upheld and this will come as a relief to many. However, the impact of the new rules is still likely to have a far-reaching impact on how litigation is approached.

It is anticipated that the changes may fuel an increased trend towards parties agreeing, whether during the drafting of commercial agreements or during the pre-action phases of a dispute, to use arbitration rather than litigation as the chosen method of dispute resolution as this process remains confidential.

The courts are also likely to be inundated with requests from the press and potentially company competitors for copies of statements of case in the hope they will uncover scandalous or commercially useful material.

Litigants should try to ensure as far as possible that statements of case filed at court do not contain confidential information they would not wish the public to see. If disclosure of such information cannot be avoided, consideration should be given to putting the sensitive material in a schedule or annex or an application should be made to the court requesting that access to the relevant documents be restricted.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.