Concept Ltd & Ors v Cape Intermediate Holdings Plc

A non-party seeking access to litigation documents under Civil Procedure Rules 1998, rule 5.4C may seek preservation of the material pending determination of the access application. The court should consider the constitutional principle of open justice and the public interest in enabling scrutiny of the administration of justice. Documents filed for a trial may potentially fall within the court’s records even if they were not read aloud or formally treated as read in open court. At an interim stage, the court may preserve the position without finally deciding whether each document is disclosable. The scope of preservation and any subsequent access remain matters for determination after the affected parties have been heard.

The Asbestos Victims Support Groups Forum UK, a non-party, made an ex parte application concerning documents lodged during asbestos-related litigation between Concept 70 Limited, Cape Intermediate Holdings plc and others. The underlying trial had settled confidentially before judgment, and the applicant was informed that documents might shortly be destroyed. It sought preservation of the court material pending a later application for access under rule 5.4C of the Civil Procedure Rules 1998. The central issue was whether the court should preserve trial documents while reserving the question whether they were documents to which a non-party could obtain access.

1. The application was competent under rule 5.4C(2) of the Civil Procedure Rules 1998. There was a prima facie case that documents lodged for the trial might fall within the court records and might therefore be amenable to an order granting access.
2. The principle of open justice was central. It supports transparency and public scrutiny of the legal process and underlies the access regime in rule 5.4C. Following the approach discussed in Guardian News and Media v Westminster Magistrates Court [2013] QB, the court should not necessarily require a document to have been read aloud, marked as read or formally deemed read before considering whether access may be granted.
3. The court was not required at this interim stage to determine the boundary of the access power. The parties would have an opportunity to respond, and the issue whether particular documents were properly regarded as within rule 5.4C could be decided on the return date.
4. The public interest in openness was especially significant in asbestos litigation, given the widespread death and injury associated with asbestos exposure. Preservation of the trial material was proportionate and appropriate.
5. All documents, files, trial bundles, relevant transcripts and other material lodged or brought into court for the trial, including electronic media, were ordered to be transferred to or returned to the court for safekeeping. The application was reserved to Master McCloud, with liberty to apply within seven days and costs reserved.

not stated in the judgment.