02 Oct 2019
The Supreme Court, in a ruling that has perhaps garnered less media attention than their discussions on prorogation, have unanimously held that non-parties to Litigation have the right to view documents from a Trial they never took part in.
An asbestos manufacturer was sued by insurance companies in respect of payments made out after employees of the asbestos manufacturer contracted mesothelioma. The Trial took place over 6 weeks. After the Trial had been finalised, but before the Court handed down Judgment, the parties to the Litigation came to a Settlement. A victim support group, set up to assist people who have contracted illnesses from asbestos exposure, made an Application to the Court to access the trial bundles and other documents, with the view that such documents could be used to assist asbestos sufferers in future cases, although the Application itself did not identify a specific ongoing case.
The asbestos litigation in question involved a large amount of documentation, with the hard copy Trial Bundle coming to 17 lever arch files and over 5,000 pages. An additional electronic Trial Bundle, containing all documents disclosed between the parties was also available at Trial and accessible by the Court. The aim was, should a party refer to a document in the electronic Trial Bundle, it could be accessed immediately and the document would then be added to the Hard Copy Trial Bundle. The victim support group sought access to all documents the Court had access to.
It was held in the High Court in the first instance that the hard copy Trial Bundle could indeed be accessed by the support group, which was held to be “records of the Court” and therefore falling within the discretion of the Court to allow access. However, it was also held that the electronic Trial Bundle would not be accessible.
The respondent appealed. The Court of Appeal overruled the High Court, significantly limiting the documentation that could be accessed and what “the records of the Court” meant. It was held that the support group may only have access to the following documents:
The Court of Appeal held the matter should then be referred back to the High Court to decide on whether further documents that had been read out in Court had lost confidentiality and whether therefore they should be disclosable, or whether open justice dictated that such documents should now be open to inspection.
Both sides appealed to the Supreme Court arguing the finding was both too narrow (in the case of the party seeking access to documents) and too wide (in the case of the party resisting allowing access to documents).
The Supreme Court dismissed both appeals. Lady Hale, in her last year before retirement, held that to comply with the requirements of open justice, the public must have the right to access submissions made by the parties and the arguments raised. However, an Applicant will not have an automatic right to access documents and on Application to the Court, an Applicant must explain why they require access and how, if access is granted, the principles of open justice are satisfied.
The Court, while balancing the very real need that justice must be seen to be done, as Lady Hale stated in her opening remarks, will also have due regard for the practicalities of protecting national security concerns, or very real commerciality issues of rivals attempting to gain advantage by obtaining trade secrets, representing examples where the Court will likely not allow access.
The decision is a welcome case, setting out the hurdles non-parties will need to overcome to obtain copies of Court Documents. Whilst the Court has highlighted open justice as the guiding principle, it has taken a pragmatic and common-sense approach on how to apply that principle in practice.
You can access the Judgement here.
Harding Evans is a trading name of Harding Evans LLP, a limited liability partnership, registered in England & Wales (registered number: OC311802), authorised and regulated by the Solicitors Regulation Authority (SRA number: 419663).