Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38

Non-party Asbestos Victims Support Groups Forum sought access to trial documents from settled asbestos litigation against Cape. The Supreme Court confirmed courts have inherent jurisdiction, rooted in the open justice principle, to allow non-party access to court documents beyond what procedural rules expressly permit.

Facts

Cape Intermediate Holdings Ltd (“Cape”), a manufacturer and supplier of asbestos, was the defendant in a six-week trial before Picken J in early 2017 concerning claims by employers’ liability insurers seeking contribution from Cape in respect of mesothelioma claims. The litigation generated voluminous documentation, including a core hard-copy bundle (Bundle C) exceeding 5,000 pages and an electronic bundle (Bundle D) containing all disclosed documents. The PL claims were settled after trial but before judgment.

The Asbestos Victims Support Groups Forum UK (“the Forum”), a non-party unincorporated association supporting asbestos disease sufferers, applied under CPR rule 5.4C for access to all documents used at or disclosed for trial, including trial bundles, witness statements, expert reports, transcripts and written submissions. The Forum believed the documents contained valuable information about the industry’s knowledge of asbestos dangers.

The Master ordered extensive disclosure. The Court of Appeal allowed Cape’s appeal in part, taking a narrower view of “records of the court” under CPR rule 5.4C(2) but recognising an inherent jurisdiction to permit access to certain categories of documents. Cape appealed to the Supreme Court; the Forum cross-appealed.

Issues

The Supreme Court identified three issues:

1. The scope of CPR rule 5.4C(2) and whether it empowers the court to order access to all documents filed, lodged or held at court.
2. Whether access to court documents is governed solely by the Civil Procedure Rules or whether the court has an inherent power to order access outside the Rules.
3. If such inherent power exists, its extent and the principles governing its exercise.

Arguments

Cape

Cape argued that the Court of Appeal should have limited itself to ordering disclosure only of statements of case under CPR rule 5.4C(1); that the inherent jurisdiction was very limited and extended only to skeleton arguments and written submissions (per FAI); and that the Forum had no relevant legitimate interest in obtaining the documents, as the public interest in open justice differed from the public interest in the documents’ content.

The Forum

The Forum cross-appealed, contending that any document filed at court should be treated as part of the court’s records under CPR rule 5.4C, and the default position should be to grant access to documents placed before a judge and referred to by a party at trial, unless good reason existed otherwise.

Media Lawyers Association (Intervener)

Stressed that the media, as the eyes and ears of the public, required access to court documents to scrutinise proceedings, often after judgment when the need for scrutiny becomes apparent.

Judgment

Lady Hale, delivering the unanimous judgment, opened with Lord Hewart CJ’s dictum in R v Sussex Magistrates, Ex p McCarthy:

“… it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

Scope of CPR rule 5.4C(2)

The Court rejected the Forum’s argument that every filed document forms part of the “records of the court”. The essence of a record is that it is something kept – a permanent or long-term record. The “records of the court” refers to documents the court itself keeps for its own purposes, not every document generated in the case. Practice Direction 5A’s list (claim forms, acknowledgements of service, application notices, orders, lists of documents) indicates what is currently retained; it does not include trial bundles, witness statements, expert reports or transcripts.

Inherent jurisdiction and the open justice principle

The Court held that court rules are not exhaustive. The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state, and all such courts have an inherent jurisdiction to determine what that principle requires in terms of access to documents, unless inconsistent with statute or rules. The Court endorsed the approach of Toulson LJ in Guardian News and Media, as approved in Kennedy v Charity Commission and A v British Broadcasting Corpn.

Lady Hale identified two principal purposes of open justice: first, enabling public scrutiny of the way courts decide cases and holding judges to account; second, enabling the public to understand how the justice system works and why decisions are taken. Given the modern shift from oral to written material, access to written documents is often essential to understanding proceedings.

How the jurisdiction should be exercised

The default position, following Guardian News and Media, is that access should be permitted to documents placed before the judge and referred to in the proceedings – not limited to what the judge has said they read, because otherwise “the less conscientious the judge, the less transparent is his or her decision”. However, the applicant has no right to access; they must explain why access will advance the open justice principle. The court must undertake a fact-specific balancing exercise, weighing the purpose and value of disclosure against risks of harm to the judicial process or legitimate interests of others (national security, protection of children, privacy, trade secrets, commercial confidentiality).

Practicalities and proportionality are relevant. Applications made during trial are preferable; post-trial applications may be defeated by disproportionate burdens on parties. Regarding trial bundles, they are provided for the convenience of parties and the court and are not themselves “the evidence”. Marked-up bundles cannot be ordered to be disclosed without consent, though a clean copy may be the most practicable means of providing access.

Disposal

As Cape attacked the Court of Appeal’s order on jurisdictional grounds only, without asserting countervailing rights, there was no realistic prospect of a more limited order being made. The Court upheld paragraphs 4 and 7 of the Court of Appeal’s order, and substituted paragraph 8 with an order listing the remaining issues before Picken J (or another High Court Judge) to determine in accordance with the Supreme Court’s principles.

Implications

The decision authoritatively confirms that the open justice principle, as a constitutional principle, empowers all courts and tribunals to allow non-parties access to court documents via an inherent jurisdiction that is not limited by procedural rules (save where those rules validly prohibit). The principles established in Guardian News and Media apply across civil, criminal and family proceedings and throughout the United Kingdom.

The default position is that non-parties should be permitted access to documents placed before the court and referred to during hearings, though subject to a fact-specific balancing exercise. Applicants must demonstrate how access advances open justice; the media are often well placed to do so but are not the only ones with a legitimate interest.

Practical limitations are significant. Post-trial applications face difficulties of document retention, proportionality and burden. Trial bundles cannot be disclosed in marked-up form without consent. The Court expressly left unresolved the extent of any continuing obligation of parties to co-operate in furthering open justice after proceedings end, and urged the rule-making bodies across the United Kingdom to consider these issues through consultation.

The judgment matters to litigants, the media, researchers, campaign groups and legal practitioners. It clarifies that access rights do not rest solely on the CPR but on an inherent common-law jurisdiction grounded in constitutional principle, while preserving judicial discretion to weigh competing interests case by case.

Verdict: Appeal dismissed and cross-appeal dismissed. The Supreme Court upheld paragraphs 4 and 7 of the Court of Appeal’s order requiring Cape to provide copies of specified statements of case, witness statements, expert reports and written submissions to the Forum. Paragraph 8 was replaced with an order remitting remaining document-access questions to Picken J (or another High Court Judge) to be determined in accordance with the principles laid down by the Supreme Court.

Source: Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38