Dring v Cape Intermediate Holdings Ltd

The court’s inherent jurisdiction permits access by non-parties to documents placed before a court, subject to statute and the rules of court. The applicant must show why access will advance the open justice principle. There is no separate threshold jurisdictional bar, but the court must conduct a fact-specific balancing exercise.

The court weighs the purpose and value of access against confidentiality, privacy, commercial interests, practical burdens and proportionality. Documents sought mainly for use in other litigation may justify an application, but that collateral purpose carries less weight where the applicant already understands the issues and evidence. Access to underlying trial documents was therefore refused.

The application was made by Graham Dring on behalf of the Asbestos Victims Support Groups Forum UK, a non-party to settled asbestos-related proceedings involving Cape Intermediate Holdings Ltd. Following the trial, the Forum sought access to further documents in the trial bundle, including documents disclosed by Cape and referred to during the hearing.

The Supreme Court had directed the application to be reconsidered by the High Court in accordance with the principles governing access to court documents under the open justice principle. The central issue was whether the Forum should receive the remaining Bundle C documents under CPR rule 5.4C(2) or the court’s inherent jurisdiction.

1. Application dismissed. The court declined to order Cape to provide the Forum with the remaining documents in Bundle C.
2. The Supreme Court’s decision required the application to be considered afresh. The earlier exercise of discretion by the Master and the Court of Appeal did not remove the High Court’s discretion.
3. The inherent jurisdiction supporting open justice is broad. The Civil Procedure Rules are not exhaustive, although they may contain valid restrictions. The question is how the jurisdiction should be exercised in the particular case.
4. The applicant must explain both why access is sought and how it will advance open justice. This is not a freestanding jurisdictional hurdle. The issue forms part of a fact-specific balancing exercise. Relevant considerations include the purpose and potential value of access, risks of harm to the judicial process or others, confidentiality, practicalities, proportionality and the timing of the application.
5. The default position that access may be allowed to documents placed before a judge and referred to during proceedings does not create an automatic entitlement. Access sought for other litigation is not barred, but it may have only a limited connection with open justice.
6. Here, the Forum already had the pleadings, written submissions and expert reports, which enabled it to understand the issues and evidence in the settled proceedings. Its real objective was to obtain underlying documents for use in other litigation. That did not sufficiently advance open justice. The absence of specific countervailing evidence from Cape did not determine the matter, and the practical ease of copying the documents did not outweigh the weakness of the application’s connection with open justice.
7. The court also took account of the unrestricted use intended for the documents, Cape’s inability ordinarily to explain them in later litigation, and the Forum’s failure to seek access during the trial. The application was therefore refused in the exercise of discretion.

• Supreme Court: In [2019] UKSC 38, the Court remitted the application to the High Court for determination under the principles governing access to documents under the open justice principle.
• Court of Appeal: In [2018] EWCA Civ 1795; [2019] 1 WLR 479, Cape’s appeal from the Master’s order was allowed in part and the application for further documents was remitted.
• High Court: The remitted application was dismissed.