Law Debenture Trust Corporation (Channel Islands) Ltd. v Lexington Insurance Company & Ors

A non-party may obtain access to pleadings under Civil Procedure Rules 1998 rule 5.4(2)(c) where the documents are relevant to a legitimate purpose. Access to written opening submissions rests on the inherent jurisdiction and the principle of open justice. The existence of a judgment is not essential where a hearing has begun and the submissions have been read or deployed to facilitate the trial, even if the proceedings later settle. Access may nevertheless be refused or limited where the material contains allegations which might have been excluded as legally inadmissible and whose publication could unfairly prejudice a party. In such a case, the court may order disclosure subject to redaction.

HIH, a non-party to settled proceedings concerning film-financing insurance transactions, applied for access to pleadings and written opening submissions. HIH was pursuing related claims against the same placing broker, JLT, and wished to assess whether similar allegations of fraud could be advanced.

The application relied on CPR 5.4(2)(a) and (c), CPR 31.22, CPR 32.13 and the court’s inherent jurisdiction. JLT did not object to disclosure of relevant pleaded allegations against it, but opposed disclosure of written openings and of allegations concerning fraud in two related film slates which had not been pleaded. The central issue was whether the court should disclose written submissions after the hearing had begun but before judgment, where the proceedings had settled.

1. Application granted in part. HIH was entitled to access the relevant pleadings and written openings, subject to redaction of allegations of fraud against JLT concerning Hollywood 1 and 2.
2. CPR 5.4(2)(c) applied to the pleadings because they were documents from the court records. HIH had a legitimate purpose: investigating potentially relevant allegations in closely related proceedings. There was no public policy against access to relevant pleadings in those circumstances.
3. Written openings were advocacy documents, not court-record documents. CPR 31.22 did not apply because they were not disclosed documents in a party’s possession or control, and CPR 32.13 concerned witness statements. The relevant jurisdiction was therefore inherent.
4. Following the approach in Gio Personal Investment Services Ltd v Liverpool and London Steamship P & I Association Ltd [1999] 1 WLR 984, the purpose of access was to maintain open justice and enable public scrutiny of the judicial process. Where a hearing had commenced and written submissions had been read to inform the judge’s conduct of the trial, access could be ordered even though no judgment had been delivered and the case had subsequently settled.
5. The fact that oral openings had not reached every issue did not prevent access. The written submissions had informed the court about the totality of the issues and facilitated the hearing. The reasoning in SmithKline Beecham Biologicals SA v Connaught Laboratories [1999] 4 All ER 498 was relevant to the balance between efficient and open justice.
6. However, the unresolved objection to the unpleaded Hollywood 1 and 2 fraud allegations required the court to proceed on the basis that they might have been excluded. It would be unfair to expose those allegations to a non-party. The exclusion did not extend to allegations of fraud against Flashpoint.