Open justice – proposed rule change will increase transparency

‘’How is the rule of law to be policed?......Who will guard the guards themselves? In a democracy where the power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the working of the law for better or for worse’’.

Toulson LJ, in R (Guardian News and Media Limited)  v The City of Westminster Magistrates’ Court [2012 – EWCA Civ 420]

Background

In 2019, the Supreme Court was asked to determine an appeal brought by Cape Intermediate Holdings Limited against an earlier Court of Appeal ruling which had ordered the disclosure of certain categories of documents. These documents had been produced for the trial between several employers and their insurers who sought a contribution from Cape on the basis that they had been negligent in the production and labelling of asbestos insulating boards.

Cape denied liability and the contribution claims were settled by a consent order before judgment was given.

The Asbestos Victim Support Groups Forum, a non-party, sought an order under CPR 5.4 with a view to preserving and obtaining copies of all documents used at or disclosed for the trial. The Supreme Court, after dismissing (in part) Cape’s appeal, but remitting one element for further determination, said this in the concluding ‘Postscript’ paragraph of the judgment:

“We would urge the bodies responsible for framing the Court rules in each part of the United Kingdom to give consideration to the questions of principle and practice raised by this case……..This and the other practical questions touched on above are more suitable for resolution through a consultative process in which all interests are represented than through the prism of an individual case”.

The supply of documents to a non-party from court records

Presently, the court may order the disclosure of documents to a non-party if these are documents referred to during a court hearing but (if consent is withheld), only upon an application by the non-party who will also bear the cost of supplying the documents.

The Civil Procedure Rules Committee (CPRC) has now published its response to the Supreme Court’s exhortation, by way of an amended rule 5.4 (CPR).

The proposed change by the CPRC will, if adopted, mean that a non-party:

1. May obtain from the court records a copy of any of the documents in relation to the proceedings without permission of the court (our emphasis).
2. Obtain a skeleton argument or witness statement.

The documents included in (a) above are listed to comprise: judgments or orders, claim forms and statements of case, skeleton arguments, witness statements and affidavits (but not exhibits) and expert reports (but not medical reports).

Further, but only with the permission of the court, a non-party may obtain from the court records of any other document filed by a party to the litigation (our emphasis).

Timings and responsibility 

The documents can be released once they have either been filed at court or, in the case of witness statements and expert reports, once the witness has been called to give evidence at the hearing.

The proposed rules specifically state that it is the responsibility of the party who filed the document to provide copies.

Can a party to the litigation object?   

A party must apply to the court if it seeks to object or restrict a non-party from obtaining a copy of document(s) or, if it seeks to redact the content of the document(s).

Commentary 

Since its introduction in 1999, the rule in CPR 5.4, giving the court the power to order disclosure of documents, has only been triggered sparingly by non-parties. Generally, its application has been through media organisations reporting either unusual or high profile pieces of litigation, commenced generally in the High Court.

The proposed change essentially makes disclosure of the relevant documents the default position – placing the burden of proof on the litigating party to object, restrict or redact.

Criticism of the proposed rule change is likely to be focused on the following:

• That the burden of the parties identifying and retrieving documents may be out of proportion to the benefits of the open justice principle.

• That disclosure may in certain circumstances harm national security. It may also be detrimental to the protection of privacy interests more generally and the protection of trade secrets and commercial confidentiality.

Should litigators and their representatives be concerned?

We remain unconvinced that there is sufficient interest outside a limited number of media organisations or pressure groups/campaign bodies in civil litigation generally to result in an avalanche of disclosure request from non-parties.

Documents such as witness statements and experts’ reports will only pass the disclosure threshold once the witness or expert has been called to give evidence. We should also bear in mind that contested trials and hearings constitute only a very small element of civil justice and litigation more generally.

There is an additional safeguard — which permits a party to the litigation to object to the request or otherwise apply to restrict or redact the documents. 

Although the court may permit release of other documents (outside those contained on the list) which are filed or referred to in court proceedings, this requires a non-party to apply to the court at their own expense.

We also envisage that in litigation involving commercial clients, an objection to disclosure on the grounds of commercial sensitivity would be treated sympathetically by the courts once a certain evidentiary threshold has been provided.

One can see how the proposal promotes transparency, may assist genuine potential claimants identify and pursue compensation opportunities for genuine grievances and could benefit, for example, potential third parties who may want access to information which  existing parties to litigation are tactically preventing them from seeing in the main action. That said, these provisions do have some unwelcome implications, not least the time and cost which will attach to any such request for documents, particularly in cases involving extensive pleadings, challenges to documents or extensive redaction to preserve confidential information. In addition, as litigators know, persuading witnesses to provide testimony and attend trial can be overwhelming as it is – will the realisation that anyone could apply to get hold of a person’s statement be a further deterring factor to being a voluntary witness and agreeing to assist? Any additional process which may occupy more court staff resource is not helpful at a time when delays in the court process are at a record high. Such a rule may be open to abuse by claims management companies and those who participate in ‘fishing expeditions’ to identify and exploit new possible (even scurrilous) claims against defendants. When the process around parties’ ability to apply to secure documents from non- parties is tightly controlled under the CPR, some may question why the proposed reverse process will arguably be so much easier. 

That being said, we have already seen outside civil litigation, in the opening of some courts in hitherto closed family proceedings, how seriously the judiciary is taking the principle of open justice which, in the words of Toulson LJ, ‘lets in the light’.

This rule change provides another example of the judiciary’s direction of travel.