In this appeal the Supreme Court were asked to consider how much written material placed before the Court in a civil action should be accessible to non-parties to the proceedings.
The underlying proceedings concerned a claim by insurers against Cape Intermediate Holdings Ltd for its involvement in the manufacture and supply of asbestos products – the insurers had insured personal injury claims in respect of those products. A six-week trial took place. After that trial, but before judgment, the parties agreed to settle the claim.
The Asbestos Victims Support Groups Forum UK (Forum) were not a party to those underlying proceedings but applied under CPR 5.4C for access to all of the documents used at or disclosed for the purposes of the trial, including the trial bundles.
A wide-ranging order was made at first instance granting Mr Dring (acting for and on behalf of the Forum) access to the hard copy trial bundle, including disclosure documents, all witness statements, and expert reports.
On appeal, the Court of Appeal held that the phrase "records of the court" for the purpose of the discretion to allow non-parties access under CPR 5.4C(2) were much more limited than the Master had held at first instance. That said, however, the Court had an inherent jurisdiction to permit a non-party to obtain documents that, broadly speaking, had been read, or treated as having been read, by the judge. That inherent jurisdiction did not, however, extend to allow non-parties access to documents simply on the basis that they had only been referred to in the hearing.
The Supreme Court Decision
In lieu of any authoritative definition of "records of the court", the Supreme Court adopted a rather narrow approach, holding that the phrase must refer to those documents and records which the court itself keeps for its own purposes. It was noted that the purposes for which court records are kept are completely different for the purposes for which non-parties may properly be given access to court documents.
The Supreme Court's view of the Court's inherent jurisdiction was, however, altogether much wider. Following the approach of Toulson LJ in R (Guardian News & Media Ltd) v City of Westminster Magistrates' Court  QB 618, the Supreme Court held that the Court's inherent jurisdiction extends to documents placed before the Court and referred to during a hearing, and that the jurisdiction should not be limited to those that the judge has read, or has been asked to read.
In making an application for access to court documents, it is for the non-party applicant to explain why the access is sought and how accessing the documents will advance the principle of open justice. In this regard, the Court will carry out a fact-specific balancing exercise weighing up the value of the information in advancing the principle of open justice against the risk of harm the disclosure may cause to the maintenance of an effective judicial process and/or to the legitimate interests of others. The practicalities and proportionality of granting the request will also be relevant considerations when deciding whether access should be granted. The Supreme Court noted that it would be highly desirable for applications to be made during the trial when the material is still readily available, the parties are before the court and the trial judge is in day-to-day control of the court process.
In the context of this appeal, the Supreme Court upheld the Court of Appeal's decision, but indicated that a wider order could have been made under the Court's inherent jurisdiction.
Access to documents post-Cape
This decision provides useful guidance in respect of the Court's jurisdiction to order non-party access to documents. Whilst the Court's jurisdiction to grant access under the CPR is narrowly defined, it will be welcome news to potential litigants, journalists, and support groups (such as the Forum in the present appeal), who wish to seek access to court documents for the purposes of advancing the principle of open justice.
Non-party applicants will need to be prepared to advance arguments as to why the access sought will advance the principle of open justice, and why the grant of the request would neither be impracticable nor disproportionate. To avoid any countervailing arguments relating to the impracticality of access due to the timing of the application, potential applicants would also be well-advised to make their application during the trial.