Which litigation documents can non-parties obtain?

Legal proceedings and the documents they generate are often of interest to third parties. There may be public interest in these documents due to the subject matter of the proceedings or the proceedings may be relevant to private or commercial interests, for example those considering bringing similar claims against the same or related parties. While the principle of open justice means that non-parties have a right to attend court hearings (save in exceptional circumstances), the ambit of non-parties’ rights to documents has in recent years been the subject of some uncertainty.  The recent Court of Appeal ruling in Cape International Holdings Limited v Mr Graham Dring[1] has clarified the applicable principles.

Non-parties will not generally have access to the following documents:

• trial bundles;
• advocates’ skeleton arguments or written submissions which have not been deployed at a public hearing; or
• documents simply referred to in skeleton arguments, witness statements, experts’ reports or in court (including exhibits to witness statements).

Non-parties may in principle have access to the following documents:

• Statements of Case (Claim Forms, Particulars of Claim, Defences, Further Information);
• advocates’ documents such as skeleton arguments and written submissions used in lieu of oral submissions or deployed at a public hearing;
• witness statements which stand as evidence in chief at trial unless a contrary order is made;
• experts’ reports which stand as evidence in chief at trial unless a contrary order is made;
• documents referred to or exhibited in witness statements or experts’ reports which are read or treated as read in open court or without which it is not possible to understand the statement or report; and
• documents a judge is specifically invited to read outside court (not those which are simply referred to in another document), documents read out in open court and documents which it is clear or stated that the judge has read.

The Court of Appeal also ruled that courts hearing applications from non-parties to obtain these documents are likely to lean in favour of granting permission where the principle of open justice is engaged (i.e. there has been an effective hearing of the proceedings), even if the proceedings are settled by the parties before a judgment is delivered. Where the open justice principle is not so engaged, the Court of Appeal ruled that permission is unlikely to be granted unless there are strong grounds to consider that granting permission is in the interests of justice.

This guidance from the Court of Appeal is to be welcomed by non-parties and parties alike – the balance to be struck between documents which are to be treated as potentially open to the public and those which parties can expect to remain confidential has been given some much needed clarity.

[1] Cape International Holdings Limited v Mr Graham Dring (for and on behalf of the Asbestos Victims Support Group) [2018] EWCA Civ 1795