Dring v Cape Distribution Ltd & Anor (Constitution - access to courts - open justice)

The common law power to permit public access to court documents is broad and is administered primarily through CPR 5.4C. The rules regulate, but do not exhaust, that power.

Where a document is filed and has been read, treated as read, or featured in proceedings, the default position favours access for an applicant with a legitimate interest. The court must still balance that interest against harm to others. Unread filed documents require strong grounds showing that access is necessary in the interests of justice. Served but unfiled disclosure documents may be disclosed under the common law, but special circumstances and a cautious approach are required. Settlement before judgment does not disengage open justice.

The applicant, an officer of the Asbestos Victims Support Groups Forum, sought access to documents retained by the court after asbestos product-liability proceedings involving Cape and connected companies. Those proceedings had been heard by Picken J and settled before judgment.

The application concerned witness statements, expert reports, transcripts, written submissions, pleadings and disclosed documents, including a large electronic disclosure repository known as bundle D. The central questions were whether the documents formed part of the court record, whether open justice applied after settlement, what threshold governed access, and how the applicant’s legitimate interests should be balanced against Cape’s interests.

1. Jurisdiction and governing principles. CPR 5.4C is the primary procedural means of administering the court’s common law power to permit public access to documents, but the common law is the master and not the servant of the rules. Documents filed on the court record fall within CPR 5.4C(2). Served documents which are not filed may still be disclosed under the common law.
2. Open justice and settlement. Open justice supports public scrutiny of the courts, the integrity of the court process, and the development of law and legal knowledge. Parties cannot, by private agreement, determine the extent to which the public may know about proceedings conducted under the court’s jurisdiction. The principle remains engaged where proceedings settle before judgment, provided the documents were read, treated as read, or featured in the proceedings.
3. Applicable thresholds. Filed documents which were read or treated as read attract a default position in favour of access where the applicant has a legitimate interest. The court must then conduct a fact-specific balancing exercise addressing the value of access and the risk of harm to legitimate interests. Filed documents not read or treated as read require strong grounds for thinking that access is necessary in the interests of justice.
4. Application to the documents. The paper trial bundles, submissions, skeleton arguments and transcripts had been filed or effectively filed, placed before the judge and used in the proceedings. The default position therefore applied. Bundle D was not filed and its unused residue had not featured in the decision-making process. Although the court had common law jurisdiction to order access to it, special circumstances were required and were not shown.
5. The applicant demonstrated a legitimate interest through the proposed academic, public, pressure-group and litigation-related uses of the material. General concerns about publication, possible further claims, settlement confidentiality and post hoc privacy objections did not outweigh the public interest in access to material deployed openly at trial.
6. The application was allowed for witness statements with exhibits, expert reports, transcripts, written submissions, skeletons, and relevant statements of case and requests for further information. Disclosure of relied-on documents was allowed only for those in the paper bundles. Bundle D and disclosure statements were excluded. The documents were to be made available to the applicant’s solicitor, subject to an undertaking, and the court file and bundle D were not to be destroyed without further order.

This was a first-instance application in the High Court. The underlying product-liability proceedings had settled before judgment. Permission to appeal was refused, although the judge indicated that any renewed application might appropriately be considered by a judge with appellate jurisdiction.