Cape Intermediate Holdings Ltd v Dring

The court records accessible under Civil Procedure Rules rule 5.4C comprise documents which the court keeps for its own purposes. They do not include every document filed, lodged or temporarily held at court.

The rules do not exhaust the court’s power. The constitutional principle of open justice gives every court or tribunal exercising the state’s judicial power an inherent jurisdiction to grant access to documents placed before it. The default extends to documents referred to at a public hearing, whether or not the judge read them.

An applicant has no automatic right outside the rules. The court must balance the material’s value in advancing open justice against potential harm, confidentiality, practicality, cost and proportionality.

Following a six-week asbestos-related civil trial, which settled before judgment, the respondent non-party sought access to the trial bundles, evidence, submissions and transcripts. A Master granted broad access under Civil Procedure Rules rule 5.4C or the common law.

The Court of Appeal allowed the appellant’s appeal: [2018] EWCA Civ 1795; [2019] 1 WLR 479. It interpreted the court’s records narrowly but ordered access to specified statements of case, evidence and written submissions under the rules or the court’s inherent jurisdiction. It remitted the question whether certain further documents should be supplied.

The appellant challenged the existence and scope of that inherent jurisdiction. The respondent cross-appealed against the restricted interpretation of rule 5.4C. The central issues were the meaning of the court’s records, the existence of a power outside the rules, and the scope and exercise of that power.

1. Disposition. Lady Hale, delivering the judgment of the court, rejected the appellant’s narrow jurisdictional challenge. The respondent’s contention that rule 5.4C(2) itself covered all documents delivered to court was also rejected. The operative parts of the Court of Appeal’s order granting access remained in force. Its remittal provision was replaced by a broader direction requiring the High Court to determine access to any other document placed before the trial judge and referred to during the trial.

2. Court records. The phrase “records of the court” in Civil Procedure Rules rule 5.4C means the documents and records which the court keeps for its own purposes. It does not encompass every document generated in the litigation or every document filed, lodged or temporarily retained at court. The administrative purposes for which court records are kept differ from the constitutional purposes for which non-parties may receive access.

3. Inherent jurisdiction. The rules prescribe minimum access rights but do not exhaust the court’s power. The constitutional principle of open justice applies to every court and tribunal exercising the judicial power of the state. Unless a statute or valid rule provides otherwise, each has inherent jurisdiction to decide what access to documents or information placed before it is required by that principle. The broader approach in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, as endorsed and explained in Kennedy v Charity Commission [2014] UKSC 20 and A v British Broadcasting Corpn [2014] UKSC 25, applied.

4. Scope and exercise. The default position covers written submissions and documents placed before the court and referred to during a public hearing. Access is not confined to documents which the judge was asked to read or actually read. Nevertheless, an applicant has no right to access outside the rules. The applicant must explain how access will advance public scrutiny or understanding of the justice system. The court must then balance that value against harm to the judicial process or others’ legitimate interests, including national security, privacy, protection of vulnerable persons, trade secrets and commercial confidentiality. Timing, cost, practicality and proportionality are also relevant.

5. Trial bundles. A marked or annotated bundle cannot be ordered to be disclosed without its holder’s consent. A clean bundle may, however, be the most practical means of supplying material to which access is justified. The respondent must bear the expense of any further copies ordered on the remittal.

1. United Kingdom Supreme Court: In Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38, the court rejected the appellant’s jurisdictional challenge and the respondent’s proposed construction of rule 5.4C(2). It preserved the access already ordered, varied the remittal and directed reconsideration under the broader open justice principles.
2. Court of Appeal: In [2018] EWCA Civ 1795; [2019] 1 WLR 479, the court allowed Cape’s appeal from the Master, restricted the meaning of the court’s records, ordered access to specified materials and remitted the question of further access on narrower grounds.
3. High Court, Queen’s Bench Division: The Master held that rule 5.4C(2) or the common law permitted broad access to the requested trial material and ordered the supply of the hard-copy trial bundle, witness statements, expert reports, transcripts and written submissions.