The Strength of Open Justice

15 October 2019

“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.” The famous words of Lord Hewart were recently echoed in the case of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK)[1], in which the Supreme Court provided guidance on the ability of third parties to access documents used in proceedings. Ruling unanimously, the five Justices held that third parties should be able to access all documents that have been placed before the Court and referred to during open hearings if they can show this advances the principle of open justice.

The case involved Mr Dring who, on behalf of the Asbestos Victims Support Forum UK (AVSF), applied under rule 5.4C of the Civil Procedure Rules (CPR) for access to all documents deployed at trial in a claim against asbestos supplier Cape, which was settled after trial but before judgement was delivered. The AVSF expected that information contained in the trial documents could assist in current and future litigation by asbestos victims.

The Supreme Court held that access should be given to all the documents that had been provided to the Court and referred to during the hearing, regardless of whether they had been read by the Judge. In doing so, the Supreme Court confirmed that the Court has an inherent jurisdiction to allow such third party access.

Despite the potentially far reaching access afforded to third parties by this ruling, Lady Hale, delivering the Court’s judgment, stated that a third party who wishes to be granted access must demonstrate a good reason or show a legitimate interest for seeking access to the documents and explain how granting access will advance the principle of open justice. Failure to do so is likely to result in the Court refusing access.

Lady Hale went on to explain that the Courts will have to undertake a fact specific balancing exercise: “On the one hand will be the purpose of the open justice principle and the potential value of the information in question in advancing that purpose. On the other hand will be any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others”.

Lady Hale listed national security, trade secrets, and the protection of the interests of children or mentally disabled adults as potential reasons for denying access.

In this decision, the Supreme Court has provided a clear message to the public and litigants: open justice will triumph if there is no good reason for it to not. Parties should therefore be mindful that their litigation may in fact become a very public matter.

[1] [2019] UKSC 38

Jack Foster Author
Jack Foster
Trainee Solicitor
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