FAI General Insurance Company Ltd v Godfrey Merrett Robertson Ltd & Ors

The principle of open justice does not generally give members of the public a right to inspect or copy documents in trial bundles, documents referred to in evidence, or documents read privately by the judge. Reference to a document in open court may remove inter partes confidentiality and permit reporting of what was read, but it does not create a general right of access.

Where a written opening or skeleton argument is accepted by the judge instead of an oral opening and is considered privately, the court may, in its inherent jurisdiction, make it available to a member of the public who applies for legitimate reasons. The applicant’s commercial or ulterior purpose is not, by itself, a sufficient reason to refuse access. Documents referred to in the written submissions remain outside that entitlement.

FAI General Insurance Company Limited was a defendant to separate reinsurance proceedings brought by Ocean Marine Mutual Protection and Indemnity Association. It sought access to documents used in a related trial involving GIO Personal Investments Services Limited, Liverpool & London Steamship Protection and Indemnity Association, and various brokers.

The High Court refused most of the application, holding that it was motivated by FAI’s commercial interests and intended to assist the separate litigation. It nevertheless directed that certain witness statements be available for inspection. FAI appealed, seeking access to witness-statement documents, written openings or skeleton arguments, documents referred to in them, and documents on the judge’s reading list. The central issues were the scope of open justice and the court’s inherent jurisdiction over access to trial materials.

1. Appeal allowed in part. FAI and Ocean Marine Mutual Protection and Indemnity Association were entitled to inspect and copy the written opening submissions or skeleton arguments of Godfrey Merrett Robertson Limited to which the trial judge had referred. Access was not extended to the documents referred to in those submissions, the trial bundles, or documents on the reading list.
2. Witness statements. Order 38 rule 2A paragraphs (12)–(16) applied to witness statements ordered to stand as evidence in chief. On its ordinary wording, the rule did not extend to documents referred to in those statements. The distinction was reinforced by paragraph (4), which required documents to be identified separately. The court noted that attached schedules or extracted documents might, in an appropriate future case, form part of the witness statement.
3. Once a witness statement had been put in evidence, its confidentiality was lost, subject to the procedures and judicial discretion in rule 2A. That did not make documents referred to in it available for inspection or copying.
4. Open justice. The public’s right to attend and report proceedings did not create a general right to inspect or copy documents merely because they had been referred to in court or read by the judge. The expression “public domain” meant that inter partes confidentiality had been lost, or that material read aloud could be reported. It did not transform the document into one to which the public had a right of access.
5. Written openings and skeleton arguments. In a complicated case, where a written opening or skeleton argument was accepted in lieu of an oral opening and considered privately, the court had inherent jurisdiction to make a copy available to a legitimate applicant during the trial. The purpose of the application was not improper merely because it included a commercial interest or was intended to assist related litigation. The same principle did not extend to documents referred to in the written submissions.
6. The timing and form of FAI’s application were not fatal. Ocean Marine Mutual Protection and Indemnity Association was treated as effectively a party to the appeal for the purpose of obtaining equivalent access. The first, second and third respondents were ordered to pay 50 per cent of FAI’s costs, with liberty to Ocean Marine Mutual Protection and Indemnity Association to apply in relation to costs.

• Court of Appeal (Civil Division): appeal from the Commercial Court was allowed in part. Access was ordered to the written opening submissions or skeleton arguments referred to by the trial judge.
• High Court, Commercial Court: Mr Justice Timothy Walker refused FAI’s principal application on the merits, but directed that certain witness statements ordered to stand as evidence in chief be open to inspection.