To what extent is it possible to obtain documents placed before the Court in civil proceedings, if you are not a party to those proceedings? What is the interplay between the rules of civil procedure that concern third party access to documents, and the Court’s inherent jurisdiction, outside of the ambit of those rules, to grant access on the basis of the age-old common law principle of open justice? Cape Intermediate Holdings v Dring has brought welcome clarity to these issues.

A third party sought access under the English Civil Procedure Rules (CPR 5.4C) to court records concerning asbestos-related litigation.

Three issues fell to be determined:

1. The scope of the relevant civil procedural rules. What is the meaning of “court records”?

2. Does the Court have an inherent power to grant access to documents outside of those procedural rules?

3. If so, how far does that power extend and how should it be exercised?

Court Records

Court records refer to those documents which the court itself keeps for its own purposes: it cannot refer to every single document generated in connection with a case and filed in court, nor can it depend upon how much of the material still happens to be there when the request is made.

However, the purposes for which court records are kept (namely, in order to run a justice system) are completely different from the purposes for which non-parties may properly be given access to Court documents (the principle of open justice).

Is there a power to grant access outside of the scope of the rules?

“There can be no doubt at all that the court rules are not exhaustive of the circumstances in which non-parties may be given access to court documents. They are a minimum and of course it is for a person seeking to persuade the court to allow access outside the rules to show a good case for doing so. However, case after case has recognized that the guiding principle is the need for justice to be done in the open and that courts at all levels have an inherent jurisdiction to allow access in accordance with that principle.”

How should the power be exercised?

The default position is that access should be granted. In evaluating the grounds for opposing access, the court will carry out a fact-specific proportionality exercise. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and any risk of harm which access to the documents may cause to the legitimate interests of others.

See our blog on the Chief Justice of the Cayman Islands’ decision concerning open justice principles.