What court documents can you gain access to as a third party interested in a case? More importantly, what can third parties access in relation to a case in which you are a party? The recent Court of Appeal decision in Cape Intermediate Holdings v. Dring  EWCA 1795 considers these issues, in particular explaining the extent of the court's discretion both under the CPR and under its inherent jurisdiction. The decision overturns the first instance order, which granted a non-party broad access to court documents, and restores the limited boundaries to the court's discretion.
The rules as to what a non-party can obtain from the court file are set down in CPR 5.4C. The general rule is that without the court's permission a non-party can obtain statements of case and judgments or orders: CPR 5.4C(1). With the court's permission, it can obtain "from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person" (CPR 5.4C(2)). This demonstrates the common law principle of open justice.
This raises some key issues such as (i) what does "records of the court" mean i.e. what is the court's jurisdiction under the CPR? and (ii) what is the extent of the court's inherent jurisdiction in this area?
The court's jurisdiction under the CPR
The term "records of the court" is not defined in the CPR. However, the term "any other document" implies that this would include most documents throughout the life of a case, such as witness statements, disclosure, expert reports, skeleton arguments, trial bundles and any evidence for interlocutory applications – all of which are, or at least may be, "filed" at court.
Lord Justice Hamblen held that "records of the court" are "essentially documents kept by the court office as a record of the proceedings, many of which will be of a formal nature". The documents that are therefore likely to be included are those set out in paragraph 4.2A of CPR 5APD.4. These include lists of documents but not the documents themselves. They may include witness statements and exhibits in relation to an interlocutory application but not witness statements for trial, expert reports, trial bundles, skeleton arguments or trial transcripts.
The key point to remember is this: "filing is not synonymous with becoming a court record, and indeed communications with the court, which are treated as being part of the 'records of the court', would not necessarily be filed."
On the basis of what he considered to be "records of the court", Lord Justice Hamblen held that, at first instance, the Master had exceeded her jurisdiction by granting the broad order sought, which included the trial bundle, skeleton arguments and transcripts.
The court's inherent jurisdiction
The court's inherent jurisdiction exceeds the powers set down in the CPR. It remains good law, from the case of GIO Personal Investment Services Limited v. Liverpool & London Steamship P&I Association Limited  1 WLR 984 (GIO), that this includes both skeleton arguments and written submissions used in lieu of oral submissions. Why? The reason is the principle of open justice: the public should have the same opportunity to understand the issues in a case as they would have had if the case had been heard in court at a hearing.
Similarly, it remains good law that the court's inherent jurisdiction does not extend to allowing non-parties access to trial documents generally, even if they have been referred to in skeleton arguments, witness statements, expert reports, or in court.
However, Lord Justice Hamblen identified one aspect of the GIO decision in which law and practice has moved on: documents read or treated as being read in open court. The category of documents treated as having been read in open court has expanded: nowadays, more often than not, judges are invited to read documents themselves in court rather than read them out loud. Further, the rationale applied in GIO for allowing a non-party access to skeleton arguments can be said to apply to any document which would have been read out in open court had it not been pre-read.
So what is the current legal position? The court's inherent jurisdiction includes allowing inspection of:
- Skeleton arguments/other advocates' documents such as chronologies/reading lists/written submissions – if there is an effective public hearing at which the argument is delivered.
- Witness statements and expert reports after trial – CPR 32.13 already provides non-parties the right to inspect these documents during the course of trial.
- Documents read or treated as read in open court – this would include documents: (i) the judge is invited to read in open court; (ii) the judge is specifically invited to read outside court; and (iii) which it is clear or stated that the judge has read.
- Other documents necessary to meet the principle of open justice – this would only be the case if it were "not possible for a reasonable observer to understand the trial evidence, argument or issues without inspection of the document or documents in question".
There is no inherent jurisdiction to allow inspection of trial bundles, witness statement exhibits or documents which are simply referred to in some other document.
The exercise of the court's discretion
What about the exercise of the court's jurisdiction? In other words, when is the principle of open justice engaged and what principles should the court apply when considering whether and how to exercise its discretion?
The answer to the former is simple: the principle is engaged as soon as there is an effective hearing, irrespective of whether the hearing proceeds to a judgment. In relation to interlocutory applications, where documents (such as an application notice and any written evidence) were considered by the court as part of its decision-making process, those documents would engage the principle. By contrast, those documents that have not been judicially considered at all do not engage the principle.
In relation to the latter, the court must balance the non-party's reasons for seeking the documents against the relevant parties' private interest in preserving their confidentiality and, to do so, the court will likely consider the following factors:
- the extent to which the open justice principle is engaged;
- whether the documents are sought in the interests of open justice;
- whether there is a legitimate interest in seeking copies of the documents and, if so, whether this is a public or private interest;
- the reasons for seeking to preserve confidentiality; and
- the harm, if any, that may be caused by access to the documents to the legitimate interests of other parties.
The general approach is that the court is likely to allow inspection if the open justice principle is engaged and there is a legitimate interest. Conversely, if the open justice principle is not engaged, it is unlikely to allow inspection unless there are strong grounds for thinking that it is necessary in the interests of justice to do so.
Despite the decision of the Court of Appeal, which provides a helpful insight into how the court will treat an application from a non-party for access to court documents, litigation parties should still be wary in circumstances where the principle of open justice will be engaged once there is a hearing and they are unlikely to be able to prevent key documents from becoming available to the public.
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