ABC Ltd v Y

A non-party’s access to court documents is governed principally by CPR 5.4C, not by an unrestricted conception of open justice. The default entitlement extends to statements of case and judgments or orders made in public, but other documents require permission. A court cannot use the rule to restrict access to a judgment or order made in public. Where documents were deployed at a private hearing, or access has previously been restricted, permission should be granted only where there are strong grounds for thinking that access is necessary in the interests of justice. Documents forming part of the decision-making process at a public hearing attract a more favourable approach where the applicant has a legitimate interest.

A non-party applied for copies of documents from the court file in earlier Chancery proceedings concerning confidential information. The earlier proceedings had been heard in private and settled by consent. An order had purported to prevent non-parties from obtaining copies of documents on the file.

The application concerned the full version of the settlement order, the defendant’s defence and counterclaim, and any witness statement made by him. The central issues were the scope of CPR 5.4C, the effect of the principle of open justice, and the applicable test for access to documents used in private proceedings.

1. The application was granted only in relation to Chief Master Winegarten’s order. The applicant was entitled to a copy of the order as it appeared on the court file, in unredacted form, because there was no indication or evidence that it had been made in private. The confidential Schedule was not filed at court and was therefore outside the applicant’s entitlement under CPR 5.4C.
2. Under CPR 5.4C, a non-party’s default entitlement is a copy of a statement of case and a judgment or order given or made in public. Other filed documents require permission. The power in rule 5.4C(4)(d) does not enable the court to restrict access to judgments or orders made in public. Such documents may also be obtained under Practice Direction 39A.
3. The principle of open justice is subject to exceptions founded on necessity, not judicial convenience or discretion. The court relied on Scott v Scott [1913] AC 417 and the subsequent authorities. The principle is primarily concerned with observing the administration of justice as it occurs, rather than conducting historical investigations into concluded litigation.
4. For documents read by the court as part of the decision-making process at a public hearing, the court should generally lean towards access where the applicant shows a legitimate interest. For documents not read by the court, or documents deployed at a hearing properly held in private or subject to an access restriction, the applicable test is whether there are strong grounds for thinking that access is necessary in the interests of justice.
5. The earlier private hearings had been ordered after the relevant principles were considered, in proceedings concerning confidential information. There was no basis for criticising those decisions. Applying the stricter test, the applicant had not established entitlement to the defence, counterclaim or witness statement. The application was refused in all other respects. Judgment was given in private, with a redacted version to be made publicly available.