Contains public sector information licensed under the Open Justice Licence v1.0.
Cape Intermediate Holdings Ltd v. Dring (Asbestos Victims Support Group)
Factual and Procedural Background
The Appellant, Company A, was involved in litigation concerning two sets of claims relating to damages paid to victims of a particular disease caused by exposure to harmful products. The first set ("PL Claims") were contribution claims brought by insurers on a subrogated basis against Company A, alleging exposure to harmful products manufactured by it. The second set ("CDL Claim") was a subrogated claim by an insurer in the name of its insured, Company B, concerning contractual indemnity and insurance issues related to settled claims by former employees.
These claims were tried together over six weeks in the Queen's Bench Division before Judge [Last Name]. The litigation settled before judgment was delivered. A large volume of documentation was involved, including separate hard copy core bundles for each claim and a joint electronic bundle containing tens of thousands of pages.
The Respondent, acting on behalf of an advocacy group supporting victims of the disease ("the Forum"), applied without notice under CPR 5.4C to obtain access to all documents used or disclosed at trial, including the entirety of the hard copy and electronic bundles ("the Application"). The Master granted an injunction requiring the parties to return all bundles to the court and ordered that the electronic bundle be transferred onto a hard drive to be retained by the court.
Company A sought for the substantive hearing to be before a High Court Judge familiar with the trial, but this was refused. The matter was then heard by the Master in open court over several days with leading counsel representing both sides. The Master handed down a judgment and made an order granting the Forum permission to obtain copies of various categories of documents from the court records but refused permission to appeal. Company A challenged the order, leading to further hearings and an injunction to prevent use or dissemination of documents removed from court. Permission to appeal was eventually granted, and the appeal was heard by the Court of Appeal.
Legal Issues Presented
- What is the scope of the court's jurisdiction under CPR 5.4C and its inherent jurisdiction to permit non-parties access to documents?
- What is the correct discretionary test to apply when granting such access?
- Whether the applicant demonstrated a legitimate interest or strong grounds in the interests of justice to justify access?
- Whether the Order made and the procedure adopted by the Master were appropriate and lawful?
Arguments of the Parties
Appellant's Arguments
- The court had no jurisdiction under CPR 5.4C to treat trial bundles, skeleton arguments, transcripts, and disclosed documents as part of the "records of the court".
- Trial bundles are not "documents filed by a party" and are administrative compilations for convenience, not formal court records.
- The Master applied the wrong discretionary test and failed to properly consider the scope of the application and the principle of open justice.
- The Forum's stated intention to publish documents broadly does not satisfy the "legitimate interest" test.
- The procedure adopted by the Master was flawed, including hearing the application without notice, refusing to transfer the hearing to a High Court Judge, and making a final order without proper representation or agreement.
- The Order lacked safeguards regarding document handling, custody, and fees, and permitted removal of original documents contrary to CPR 5.4C.
Respondent's Arguments
- The court's jurisdiction under CPR 5.4C extends broadly to all documents filed by parties, including trial bundles and related materials, as part of the "records of the court".
- Alternatively, the court's inherent jurisdiction permits access to such documents in the interests of open justice.
- The Forum has a legitimate interest as a pressure group supporting victims and promoting knowledge and safety regarding the disease.
- The principle of open justice requires a broad interpretation to ensure transparency and public confidence.
Table of Precedents Cited
Precedent | Rule or Principle Cited For | Application by the Court |
---|---|---|
Scott v Scott [1913] AC 417 | Principle of open justice as a constitutional principle requiring publicity in judicial proceedings. | Established foundational importance of open justice underpinning access to court documents. |
Home Office v Harman [1983] AC 280 | Open justice discipline of judiciary and public accountability. | Reinforced open justice as a reason for public access to judicial processes. |
R (Guardian News & Media Ltd) v Westminster Magistrates Court [2013] QB 619 | Open justice principle and court's inherent jurisdiction to regulate access to documents. | Recognised court's discretion and proportionality in balancing open justice and confidentiality. |
GIO Personal Investment Services Ltd v Liverpool & London Steamship P&I Ass. Ltd [1999] 1 WLR 984 | Limits on non-party access to court records; distinction between court records and trial bundles/skeleton arguments. | Held trial bundles and skeleton arguments are not part of court records and no inherent jurisdiction to grant access. |
Dobson v Hastings [1992] Ch 394 | Inspection of court files by non-parties requires leave; court files are not public registers. | Confirmed restricted access to court files and discretionary nature of inspection by non-parties. |
SmithKline Beecham v Connaught [1999] 4 All ER 498 | Implied undertaking and confidentiality lost when documents are read or referred to in open court. | Clarified documents read or referred to in open court may lose confidentiality, impacting access rights. |
Barings v Coopers & Lybrand [2000] 1 WLR 2353 | Reconciling open justice and judicial efficiency; presumption of judge reading referred documents. | Emphasised importance of public knowing court proceedings and presumption of document reading by judges. |
Lilly Icos Ltd v Pfizer Ltd (No 2) [2002] 1 WLR 2253 | Confidentiality and implied undertaking in relation to documents read or referred to in open court. | Supported broad approach to documents deemed read by the court and the impact on confidentiality. |
British Arab Commercial Bank v Algosaibi Trading Services Ltd & Others [2011] EWHC 1817 | Limits on inherent jurisdiction to allow inspection of exhibits to witness statements. | Confirmed no inherent jurisdiction to allow non-parties access to exhibits simply because they are referred to. |
NAB v Serco Ltd [2014] EWHC 1255 | Access to exhibits attached to witness statements. | Disagreed with prior decisions; suggested exhibits may be treated as part of statements, but court rejected this. |
Dian AO v Davis Frankel & Mead [2005] 1 WLR 2951 | Discretion in granting inspection of court documents to non-parties; distinction between documents read by court and those not. | Outlined principles for exercising discretion, favouring inspection where documents were read as part of decision-making. |
Pfizer Health Ab v Schwarz Pharma Ag [2010] EWHC 3236 | Summarised principles from Dian concerning access to court documents. | Reinforced need for permission and balancing interests in granting access. |
Court's Reasoning and Analysis
The court first considered the scope of the court's jurisdiction under CPR 5.4C and its inherent jurisdiction. It held that the term "records of the court" is not defined in the CPR but, based on statutory provisions, case law, and practical considerations, it encompasses formal documents filed with the court office and communications between the court and parties. However, it does not include trial bundles, disclosed documents within those bundles, skeleton arguments, or transcripts, which are not filed documents but rather administrative or advocacy materials intended for judicial use and typically destroyed or returned after trial.
The court relied heavily on the Court of Appeal decision in GIO Personal Investment Services Ltd v Liverpool & London Steamship P&I Ass. Ltd, which established that trial bundles and skeleton arguments are not part of the court record accessible to non-parties. The court rejected the Master’s broader interpretation that filing alone converts all trial materials into court records.
Regarding inherent jurisdiction, the court recognized that it exists but is limited. It confirmed that non-parties may obtain access to skeleton arguments and written submissions used in lieu of oral argument, witness statements and expert reports that stand as evidence in chief, and documents that have been read or treated as read in open court or which it is necessary for open justice to inspect. However, the court found no inherent jurisdiction to allow access to exhibits to witness statements or the broader trial bundles.
The court analyzed the principle of open justice, emphasizing its constitutional importance and its role in ensuring transparency and public confidence in the judicial process. It acknowledged the tension between open justice and efficient case management, especially with modern practices of pre-reading and written submissions. It concluded that open justice requires non-parties to have access equivalent to that which would have existed if the trial had been conducted orally.
In exercising discretion under CPR 5.4C(2), the court endorsed the approach from Dian AO v Davis Frankel & Mead and Pfizer Health Ab v Schwarz Pharma Ag, requiring applicants to identify documents with reasonable precision and demonstrate legitimate interest. The court should lean towards granting access when documents have been read by the court and the applicant has a legitimate interest, but require strong grounds to grant access where open justice is not engaged.
On the facts, the court found the Forum had a legitimate public interest in accessing documents, given its role supporting victims and promoting knowledge. The court rejected the argument that settlement of the litigation negated the open justice principle, confirming that the principle is engaged once there is an effective hearing, even if it ends in settlement.
Finally, the court criticized the procedure adopted by the Master as inappropriate, including hearing the application without notice, refusing to transfer the hearing to the trial judge or a High Court Judge, making a final order without proper representation or agreement, and permitting removal of original documents without safeguards.
Holding and Implications
The Court of Appeal ALLOWED THE APPEAL and set aside the Order made by the Master on jurisdictional grounds.
The court held that the Master exceeded her jurisdiction by treating trial bundles, skeleton arguments, transcripts, and disclosed documents as part of the "records of the court" under CPR 5.4C(2). The inherent jurisdiction of the court to permit access by non-parties is limited to specific categories of documents, notably skeleton arguments, witness statements and expert reports standing as evidence in chief, and documents read or treated as read in open court or necessary for open justice.
The decision restricts the scope of non-party access to court documents, reinforcing the distinction between formal court records and trial materials prepared for judicial use. It underscores the importance of open justice but balances it against confidentiality and practical considerations.
No new precedent was established beyond clarifying existing principles and applying them to the facts. The parties are expected to agree on an order reflecting the categories of documents to which access may be granted consistent with the judgment. The court emphasized the need for appropriate procedural safeguards in handling such applications in the future.
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