Cleveland Bridge UK Ltd v Multiplex Constructions (UK) Ltd

Under the principle of open justice, there is no legitimate distinction between interlocutory proceedings and a final trial when considering public access to documents. Interlocutory decisions may determine the whole or a significant part of complex litigation. Where pleadings have been judicially deployed in a public hearing, the party resisting access bears a persuasive burden. Access remains discretionary and depends on legitimate interest, judicial deployment and any demonstrated prejudice. The court should not restrict disclosure merely because pleadings are lengthy, technical or capable of selective reporting.

Sarah Curnow and the Australian Broadcasting Corporation applied for permission under Civil Procedure Rules 1998, rule 5.4, to obtain copies of pleadings filed in consolidated Technology and Construction Court proceedings concerning the Wembley Stadium project. Cleveland Bridge consented. Multiplex resisted, relying principally on the evolving and complex nature of the pleadings, possible unfair media coverage and obligations under Australian Stock Exchange rules. The central issue was whether open justice required access to pleadings already judicially deployed during public interlocutory hearings.

1. The application was granted. The court ordered disclosure of the particulars of claim, response, consolidated defence and counterclaim, and consolidated reply and defence to counterclaim.
2. Rule 5.4 permits a non-party, with the court’s permission, to obtain other documents filed by a party. The documents sought fell within that provision and the application was properly made on notice.
3. Open justice applies equally to interlocutory proceedings and final trials. Interlocutory decisions may be decisive of the whole or a substantial part of a complex case. The court followed the approach in Barings plc v Coopers and Lybrand [2001] 1 WLR 2353, Law Debenture Trust Corp (Channel Islands) Ltd v Lexington [2003] All ER 165 and Dain AO v Davis Frankel and Mead [2005] 1 All ER 1087.
4. Once a document has been judicially employed in a public hearing, a persuasive burden falls on the party seeking to prevent disclosure. The applicants had a legitimate journalistic interest, and the pleadings had been extensively considered in open interlocutory hearings.
5. The anticipated commercial and reporting prejudice did not justify refusal. Any material change in Multiplex’s position would itself potentially trigger disclosure obligations under the Australian rules. The court rejected selective disclosure limited to material relevant to earlier disclosure applications, since the court had considered the whole pleaded case. It was neither appropriate nor necessary for the court to act as a regulator of the press’s ability to understand complex litigation.