Blue v Ashley

A court may permit a non-party to obtain documents filed in proceedings under CPR 5.4C(2) or the common law, guided by open justice. Where documents have been placed before a judge and referred to at a public hearing, access is the default position, but the court must undertake a fact-specific proportionality assessment. The assessment considers the purpose of open justice, the material’s potential value in serving that purpose, and risks of harm to legitimate interests. A witness statement prepared for trial does not become evidence merely because it is referred to at a pre-trial hearing. Such statements should generally not be disclosed before deployment as evidence, particularly where access is sought to publish anticipated trial evidence. Statements prepared and used as evidence for a separate public hearing may, however, be disclosed.

Times Newspapers Limited sought access to documents filed in proceedings between Jeffrey Ross Blue and Michael James Wallace Ashley. The documents included trial witness statements, an expert report, skeleton arguments, and witness statements prepared for an April 2017 hearing concerning permission to rely on expert evidence.

The trial statements had been placed before Phillips J and referred to during the April hearing, but the expert application was refused. The issue was whether that reference engaged the open justice principle so as to justify advance access to the trial statements, and whether the other documents should be supplied.

1. Power to grant access. The court had power under CPR 5.4C(2) to permit a non-party to obtain documents filed by a party. The trial witness statements had been filed when included in a bundle delivered to the court office, even though some copies were no longer on the court file. The court also retained common-law power to enable access to documents served in the litigation.
2. Witness statements and evidence. Under CPR 32.12, a witness statement may be used only for the proceedings unless an exception applies. Under CPR 32.13(1), a statement standing as evidence in chief is open to inspection during the trial unless the court directs otherwise. A statement does not become evidence merely because it is referred to at a pre-trial hearing. It becomes evidence when the witness is called to give oral evidence, or if it is otherwise admitted as hearsay evidence.
3. Open justice assessment. The approach in R (Guardian News & Media Ltd) v Westminster Magistrates’ Court [2013] QB 618 was applied. A document placed before a judge and referred to at a public hearing attracts a default position favouring access, but not a strong or automatic presumption. The court must assess the purpose for which access is sought, the value of access to public understanding and scrutiny of justice, and countervailing risks. The exercise is fact-specific and cannot be reduced to a standard formula.
4. Application. TNL’s purpose was to publish what the parties’ witnesses would say at the forthcoming trial before they gave evidence. That purpose did not engage open justice. The pre-trial reference to the statements did not justify disclosure, and the general undesirability of releasing prospective evidence before it was deployed displaced the default position. The policy reasons concerning witness immunity and the safeguards of trial evidence were explained by Lord Wilberforce in Roy v Prior [1971] AC 470. The application for the trial statements and Mr Dunn’s unused expert report was refused.
5. The statements of Ms Cullen and Mr Fearnhead had been put in evidence at the April hearing and were prepared solely for that hearing. As confirmed by NAB v Serco Ltd [2014] EWHC 1225 (QB), the absence of a reporting purpose was not sufficient to deny access. Access was therefore ordered under CPR 5.4C(2). The application was otherwise refused.