The Asbestos Victims Support Groups Forum (UK) v Cape Distribution Ltd & Ors

An application by a non-party under CPR 5.4C(2) is ordinarily a matter between the applicant and the court. A party affected by the application may be heard, but the court may impose a condition preventing that party from seeking its costs where the risk of adverse costs would stifle a public-interest application. The power to impose such a condition may arise under CPR 3.1(2)(m), section 51 of the Senior Courts Act 1981 and the overriding objective. The court may also manage such an application expeditiously where access to records may assist vulnerable claimants. The question whether particular documents should be released must ordinarily await the substantive hearing.

The Asbestos Victims Support Groups Forum (UK), represented nominally by Mr Graham Dring, applied under CPR 5.4C(2) for permission to obtain documents from court records in settled asbestos litigation involving Cape and other interested parties. An interim order preserved trial bundles and related material pending determination.

The judgment addressed the incidence of costs, the appropriate case-management directions, and whether any documents should be released immediately. Cape opposed costs protection and argued that the application was insufficiently specific and should be listed before a different judge. The central issues were whether Cape was an interested party rather than a respondent, whether conditions should govern its participation, and how the application should proceed.

1. Costs. An application under CPR 5.4C(2) is ordinarily between a member of the public and the court. Cape and Concept 70 were therefore properly treated as interested parties. Their notice and opportunity to make representations did not convert the application into ordinary adversarial litigation.
2. The preservation and impounding orders were ancillary to the substantive application. The court’s power to impose conditions on an interested party’s participation was supported by Unison v Kelly [2012] EWCA Civ 1148 and, more directly, by Baker v Quantum Clothing Group Ltd [2008] EWCA Civ 823, read with CPR 3.1(2)(m), section 51 of the Senior Courts Act 1981 and the overriding objective.
3. The Forum had no private financial interest, its lawyers acted pro bono, and an adverse costs risk could stifle an application raising matters of public importance. Cape was well funded and chose to participate to protect its commercial interests. Cape was accordingly permitted to make oral or written submissions at the substantive hearing on condition that it could not seek costs against the applicant. The earlier costs orders were varied consistently with that condition.
4. The application was not an abuse of process merely because the requested categories and intended uses were broad. It was capable of adjudication, and greater specificity could be difficult without access to the documents. The application was listed expeditiously before the Master, with directions for skeleton arguments, written submissions and a hearing in October 2017.
5. Immediate disclosure was refused as premature. Whether any documents should be copied from the court record would be determined at the final hearing.