British American Tobacco (UK) Ltd & Ors, R (on the application of) v Secretary of State for Health

The court has an inherent jurisdiction to order non-party access to documents used in proceedings where this is required to give practical effect to open justice, even if the documents fall outside the formal scope of the Civil Procedure Rules. The starting point is a strong presumption in favour of access to material placed before the court and read, or treated as read, in connection with the hearing. The court must balance the value of disclosure in promoting transparency against countervailing interests such as confidentiality, privilege and efficient administration. The applicant’s reasons for seeking access are ordinarily not determinative. Disclosure may be ordered where the material is central to understanding the issues and no sufficient reason for withholding it exists. Privilege properly preserved by contemporaneous redaction remains protected.

The linked judicial review claims challenged the legality of regulations introducing standardised packaging for tobacco products. After judgment had been given, and after the claimants’ appeals had been rejected by the Court of Appeal with permission to appeal to the Supreme Court refused, a third party applied under CPR 5.4C(2) for copies of expert reports, witness statements, correspondence and ministerial submissions used in the proceedings.

The applicant and the intervener, Action on Smoking and Health, supported disclosure. The Secretary of State objected on the basis that the documents were outside the formal meaning of court records. The central issue was whether the court could order disclosure under its inherent jurisdiction and, if so, how the principle of open justice should be balanced against confidentiality and other countervailing considerations.

1. Application granted. The court ordered disclosure of the documents to the applicant and to Campaign for Tobacco Free Kids, and thereby into the public domain. Charges for making the documents available were waived because the delay in determining the application was attributable to the court.
2. Statutory and inherent powers. CPR 5.4C(2) gives the court a discretionary power to permit a non-party to obtain documents filed by a party or communications between the court and another person. The formal limits of “court records”, as explained in Cape Intermediate Holdings Ltd v Dring [2018] EWCA (Civ) 1795, did not exhaust the court’s inherent jurisdiction to order disclosure in furtherance of open justice.
3. Open justice. The documents had been referred to in the pleadings, evidence and submissions, and had been read or treated as read by the judge. The common law principle therefore supported disclosure. The court must conduct a fact-specific proportionality assessment, considering the purpose of open justice, the potential value of the material in advancing that purpose, and any risk of harm to legitimate interests.
4. The presumption was especially strong because the documents concerned public health and safety, the litigation had continuing international significance, and access would assist understanding of the judgment and the evidence. The applicant’s subjective reasons were not determinative where the applicant had an unfettered right to attend the public hearing and no overriding confidentiality, security or other objection had been established.
5. Open justice is not absolute. The court retains supervisory power to refuse or limit access in exceptional cases. Properly preserved privilege was not disturbed: material redacted to protect privilege remained redacted, while privilege in material used without restriction at the hearing had been waived.

The judgment records that the earlier judicial review judgment was followed by unsuccessful appeals to the Court of Appeal, and that permission to appeal to the Supreme Court was refused. The present decision concerned a subsequent application for access to documents from those proceedings.