Factual and Procedural Background
The Defendant, “Company A,” formerly manufactured asbestos insulation boards. In separate but related proceedings (“the PL claims”), employers’ insurers (the “Plaintiffs”) sought contribution from Company A after paying damages to former employees who had contracted mesothelioma at work. A six-week trial took place before Judge Picken in early 2017, generating extensive hard-copy and electronic bundles.
Before judgment was handed down, the parties settled. Shortly afterwards, “The Forum,” a non-party association supporting asbestos victims, applied ex parte under Civil Procedure Rule (CPR) 5.4C to preserve and obtain all documents used or disclosed at trial, plus transcripts. The Master granted wide access. Company A appealed; the Court of Appeal narrowed the order, holding that only certain categories of documents fell within CPR 5.4C or the court’s inherent jurisdiction.
Company A (now “Appellant”) appealed to the Supreme Court, contending that the Court of Appeal’s order remained too broad. The Forum cross-appealed, arguing the order was too narrow. The Media Lawyers Association intervened in support of wider public access.
Legal Issues Presented
- The correct scope of CPR 5.4C(2): does “the records of the court” include every document filed, lodged or held at court, or a more limited set?
- Whether access to court documents is governed solely by the CPR (save in exceptional circumstances) or whether the court retains an inherent jurisdiction founded on the open-justice principle.
- If an inherent jurisdiction exists, how far it extends and how it should be exercised in practice.
Arguments of the Parties
Appellant’s Arguments (Company A)
- CPR 5.4C(2) should be read narrowly; the Court of Appeal should have confined access to statements of case and public judgments.
- The inherent jurisdiction cannot be equated with the open-justice principle; any power beyond the CPR is very limited and, at most, covers skeleton arguments and written submissions actually relied on in court (per FAI).
- The Forum lacked a legitimate interest; public curiosity about asbestos documents differs from the distinct public interest in open justice.
Respondent’s Arguments (The Forum)
- Any document “filed” at court forms part of the “records of the court,” so CPR 5.4C(2) empowers the court to grant access by default.
- The default position should be disclosure of all material placed before the judge and referred to at trial unless good reason exists to refuse.
Intervener’s Arguments (Media Lawyers Association)
- The media act as the public’s “eyes and ears”; meaningful scrutiny often requires post-hearing access to documents.
- Transparency enables public understanding of judicial decision-making and guards against error or impropriety (quoting Jeremy Bentham and others).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|
| R v Sussex Magistrates, Ex p McCarthy [1924] 1 KB 256 |
Justice must be seen to be done |
Illustrates the wider public-confidence rationale underpinning open justice |
| R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2013] QB 618 |
Default right of public access to documents placed before and referred to by the court |
Adopted as the governing authority on inherent jurisdiction and balancing exercise |
| Scott v Scott [1913] AC 417 |
Foundational statement of the open-justice principle |
Cited to demonstrate historic constitutional importance of publicity |
| GIO Personal Investment Services Ltd v Liverpool & London Steamship P&I Assn (FAI) [1999] 1 WLR 984 |
Limits on non-party access; distinction between witness-statement exhibits and skeletons |
Discussed and partly departed from; Court now endorses broader access |
| Barings plc v Coopers & Lybrand [2000] 1 WLR 2353 |
Efficiency reforms must not erode open justice |
Supports need to adapt procedures without sacrificing transparency |
| Law Debenture Trust Corp v Lexington Insurance Co [2003] EWHC 2297 (Comm) |
Inherent jurisdiction to disclose skeleton arguments and similar documents |
Relied on to justify releasing advocates’ documents when deployed at public hearing |
| R v Howell [2003] EWCA Crim 486 |
Illustrates application of open-justice principle in criminal context |
Supports universality of the principle across jurisdictions |
| Kennedy v Charity Commission [2015] AC 455 |
Supreme Court endorsement of Guardian criteria (purpose, value, harm) |
Adopted as controlling test for balancing competing interests |
| A v British Broadcasting Corporation [2015] AC 588 |
Re-statement of balancing exercise for derogations from open justice |
Cited to confirm applicability of Kennedy/Guardian test |
| Home Office v Harman [1983] 1 AC 280 |
Impact of written evidence on transparency |
Used to show need for public access where evidence is not read aloud |
| SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498 |
Public access may be required to bridge gap between theoretical and practical publicity |
Supports rationale for disclosing documents merely referred to in court |
| Cape Intermediate Holdings Ltd v Dring [2019] 1 WLR 479 (CA) |
Earlier Court of Appeal ruling delimiting CPR 5.4C and inherent jurisdiction |
Order partly affirmed but broadened by Supreme Court |
Court's Reasoning and Analysis
1. Existence of Inherent Jurisdiction. The Supreme Court, led by Judge Hale, affirmed that every court or tribunal exercising judicial power retains an inherent jurisdiction to decide what open justice requires, unless displaced by statute or rules. The CPR set minimum access rights; they do not exhaust the court’s powers.
2. Purposes of Open Justice. Two primary purposes were identified: (i) public scrutiny to hold judges accountable, and (ii) public understanding of how the justice system works. Modern reliance on written evidence makes document access essential to achieve those objectives.
3. Default Position on Access. Following Guardian News and Media, the default is that non-parties should be permitted access to documents placed before the judge and referred to during the hearing, irrespective of whether the judge expressly read them.
4. Balancing Exercise. Applicants must show that disclosure will advance open justice. The court must then balance that benefit against risks such as national security, privacy, trade secrets, or other legitimate interests. Practicalities and proportionality (cost, timing, availability of documents) are integral factors.
5. Trial Bundles. Bundles are compilations for convenience and may contain annotations. Only a clean copy, if available, should be produced; annotated copies cannot be ordered without consent.
6. Application to the Present Appeal. The Court of Appeal possessed jurisdiction to make a wider order than it did. However, because the Appellant’s challenge was jurisdictional rather than merits-based, and no countervailing confidentiality was asserted, the Supreme Court:
- Allowed the parts of the Court of Appeal order granting the Forum statements of case and identified witness statements, expert reports and submissions to stand.
- Remitted the balance of the Forum’s request to Judge Picken (or another High Court judge) to determine, applying the principles set out by the Supreme Court.
The Forum’s broader interpretation of CPR 5.4C(2) was rejected; necessary power derives from inherent jurisdiction, not the rule itself.
Holding and Implications
Holding: The Supreme Court DISMISSED the Appellant’s jurisdictional appeal and PARTLY DISMISSED the Forum’s cross-appeal. It confirmed the Court of Appeal’s disclosure order in part and remitted the remaining requests for determination under the clarified principles of inherent jurisdiction and open justice.
Implications: The judgment authoritatively confirms that courts possess a broad inherent power to grant non-party access to any document placed before the judge and referred to during public hearings, subject to a fact-specific balancing exercise. It encourages early applications, expects applicants to bear reasonable costs, and invites rule-making bodies across the United Kingdom to codify practical procedures consistent with these principles.