In Cape Intermediate Holdings Limited v Dring  EWCA Civ 1795 the Court of Appeal clarified what documents a non-party can obtain from the court file. Sarah Lee outlines the procedure and what court documents a non-party is entitled to.
An insolvency office-holder’s investigations are primarily carried out using the powers available under the Insolvency Act 1986. However, when it comes to obtaining documents deployed in legal proceedings in which neither the office-holder nor the insolvent entity are parties, particular considerations apply.
Whilst a party to legal proceedings may disclose their own documents to an office-holder, under rule 31.22 of the Civil Procedure Rules (“CPR”), if they have not obtained the consent of the other party or permission of the court, they may only use documents disclosed to them in the course of legal proceedings for the purpose of those proceedings. The confidentiality of such documents will usually fall away if referred to at a hearing held in public.
Documents Available Without Permission
A person who is not a party to legal proceedings (non-party) may obtain certain documents from the court file, without the permission of the court, by writing to the relevant court office (pursuant to rule 5.4C(1) and rule 5.4D(1)(b) CPR) and upon payment of a copying fee.
Documents that may be obtained in this way include: claim forms or other statements of case but not with any accompanying documents; judgments or orders given or made in public whether at a hearing or without a hearing (subject to certain limited exceptions).
Application for Permission to Inspect Court Documents
To obtain a copy of any other document on the court file, a non-party will have to make a CPR 23 application to the court for permission to inspect the court file. The application is made under CPR 5.4C(2) and CPR 5.4D(1)(a). The application must specify with reasonable precision the documents in respect of which permission for inspection is sought, and must set out the grounds upon which permission is sought.
What Documents May / May Not Be Permitted For Inspection
In Cape Intermediate, the court below had made an order permitting non-party inspection of a very wide range of documentation held at court. The Court of Appeal overturned this order and clarified what documentation might (subject to the court’s discretion) be inspected by a non-party.
Under CPR 5.4C(2) a non-party may apply for permission to inspect “any other document filed by a party, or communication between the court and a party or another person”. “Documents filed by a party” will not include every document sent to court, but will be limited to formal documents and documents generated during proceedings. The list in paragraph 4.2A of CPR Practice Direction 5 (documents that a party may obtain) is a useful starting point. However, the scope of documentation that a non-party may be permitted to inspect is wider than this thanks to the court’s inherent jurisdiction under the constitutional principle of open justice.
The principle of open justice is intended to ensure the transparency of the legal process and maintain public confidence in the impartial administration of justice by ensuring that judicial hearings are subject to public scrutiny. This means that a member of the public should in principle be entitled to inspect any document considered by the judge in coming to her/his judgment, whether that document was considered by the judge in open court (because taken to it by the parties or their advocates) or in the privacy of her/his room (because directed to do so in pre-reading).
In Cape Intermediate, Hamblen LJ clarified that the court has no inherent jurisdiction (ie. it does not have the power) to allow non-party inspection of trial bundles; documents referred to in skeleton arguments/written submissions, witness statements, experts’ report or in open court simply on the basis that they have been so referred to. These fall outside the scope of documents necessary to satisfy the requirements of open justice, and they fall outside the scope of CPR 5.4C(2). There would have to be very strong grounds in the interests of justice to persuade the court to allow non-party inspection of such documents.
The court does have an inherent jurisdiction to allow non-party inspection of:
- witness statements of witnesses whose evidence stands as evidence in chief and which would have been available for inspection during the course of the trial under CPR 32.13;
- documents in relation to which confidentiality has been lost under CPR 31.22 and which are read out in open court, which the judge is invited to read in open court, which the judge is specifically invited to read outside court, or which it is clear or stated the judge has read;
- skeleton arguments/written submissions or similar advocate’s documents read by the court provided that there is an effective public hearing in which the documents are deployed;
- any specific document or documents which it is necessary for a non-party to inspect in order to meet the principle of open justice.
When deciding whether or not to allow non-party inspection of documents, the court has to balance the non-party’s reasons for wishing to view the documents against the private interest of parties to the proceedings in preserving their confidentiality, and will consider:
- The extent to which the principle of open is justice engaged: this may not be clear cut if there has been no public hearing, or the case settled after the start of the substantive hearing. The principle of open justice is engaged as soon as there is an effective hearing and may be more fully engaged if the hearing proceeds to judgment. The principle is also likely to be engaged when a judge has determined an application on the papers (without a hearing).
- Whether the documents are sought in the interests of open justice.
- Whether the non-party has a legitimate interest in seeking copies of the documents, and if so whether it is a public or private interest. An entirely private or commercial interest in a document, including an interest in related litigation, can qualify as a legitimate interest. In Cape Intermediate, the interest was a public one: the non-party seeking disclosure was a forum that provided help and support to asbestos victims and it sought access to the documents to disseminate them to a wider audience who might make use of them. The Court of Appeal agreed with the first instance decision that this was a legitimate interest.
- Whether there are reasons to preserve confidentiality.
- What harm (if any) third party access to the documents might cause to the legitimate interests of other parties.
The principles set out by the Court of Appeal in this judgment provide helpful guidance that can facilitate a more targeted and efficient approach to obtaining documentation from the court record.
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