Overview
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.
Background
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.
Comment
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.
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