Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group)

The “records of the court” are principally formal documents kept by the court office. Filing or temporary custody does not make trial bundles, exhibits, skeleton arguments or transcripts court records. Non-parties may nevertheless obtain access under the court’s inherent jurisdiction where open justice requires it, including to witness statements and expert reports standing as evidence, written advocates’ submissions deployed in an effective public hearing, and documents read or treated as read by the judge. Mere reference is insufficient. A specific document may be supplied where necessary for a reasonable observer to understand the proceedings. Access is discretionary and requires a balance between open justice, legitimate interest, confidentiality and potential harm. Settlement after an effective hearing does not end the open-justice principle.

The appeal arose from two sets of mesothelioma-related contribution claims, tried together but settled before judgment. The Asbestos Victims Support Groups Forum applied under CPR 5.4C for extensive trial materials, including bundles, disclosed documents, witness statements, expert reports, submissions and transcripts. Master McCloud ordered access to substantial categories of material. Cape Intermediate Holdings appealed, arguing that the court lacked jurisdiction under CPR 5.4C and its inherent jurisdiction, that the discretion had been wrongly exercised, and that the procedure and order were defective. The central issues were the meaning of the “records of the court”, the scope of inherent jurisdiction, and the balance between open justice and confidentiality.

Hamblen LJ gave the principal judgment. Newey LJ agreed, and Leveson P agreed while adding separate procedural criticisms.

1. CPR 5.4C. The “records of the court” are documents kept by the court office as a record of proceedings, principally formal documents listed in Practice Direction 5A and documents of an analogous nature, together with communications between the court and a party or other person. Filing or delivery to the court does not, by itself, make a document a court record. Trial bundles, trial witness statements, expert reports, skeleton arguments, written submissions and trial transcripts are generally outside CPR 5.4C(2). The Master therefore had no jurisdiction under that rule to order copying of those materials.
2. Inherent jurisdiction. The authority of GIO Personal Investment Services Ltd v Liverpool & London Steamship P&I Ass. Ltd [1999] 1 WLR 984 remained applicable to trial bundles and documents merely referred to in court or in written materials. The law had, however, developed in relation to documents read or treated as read in open court. Access could extend to witness statements and expert reports standing as evidence, advocates’ documents deployed in an effective public hearing, and documents read aloud, specifically identified for reading, or clearly read by the judge. Mere reference to a document was insufficient.
3. A non-party could also obtain a specific document where, after considering documents otherwise available and the transcript, inspection was necessary for a reasonable observer to understand the evidence, arguments or issues. The open-justice principle was engaged once an effective hearing began, even if the proceedings later settled before judgment.
4. Discretion. The court should balance the extent to which open justice was engaged, whether access was sought to advance it, the applicant’s legitimate public or private interest, the reasons for confidentiality, and any harm to legitimate interests. Where open justice was engaged and a legitimate interest existed, the court should generally lean towards access. The Forum’s activities in supporting asbestos victims, publicising knowledge and promoting academic and public understanding gave it a legitimate interest.
5. The appeal was allowed on the jurisdictional ground. The whole Order was set aside because of its breadth and the problems in its terms. The parties were expected to agree a replacement order reflecting the proper categories of documents, failing which written submissions would determine the final order.

1. Court of Appeal (Civil Division): Appeal allowed on ground 1; the Master’s Order was set aside. The court gave guidance on CPR 5.4C, inherent jurisdiction and the exercise of discretion. [2018] EWCA Civ 1795
2. High Court of Justice: Master McCloud ordered access to extensive categories of documents following the Forum’s application after the underlying claims had settled. [2017] EWHC 3154 (QB)