What documents can non-parties see when a case is litigated?

Written on 23 Oct 2019

Parties involved in civil litigation sometimes fear that non-parties might use documents in the case as ammunition to bring their own, related, cases. That was the situation in Cape Intermediate Holdings v Dring, where organisations supporting asbestos victims sought access to research carried out by one of the parties' medical adviser, in the hope that that information could provide support in any future litigation.

The civil litigation rules allow anyone to access the parties' statements of case (subject to certain exceptions) but permission is needed to see other records, including witness statements and documents referred to or annexed to statements of case.

What did the Court decide?

The Supreme Court in this case held that the default position is that the court has an inherent jurisdiction to allow the public access to the documents placed before a court and referred to during a hearing. However, it also said that it is "highly desirable" for the application to be made during the trial, when the material is still readily available. This might prove to be a limiting factor, since non-parties may in practice often become aware of proceedings only once the judgment comes out.

The court at first instance had held that it didn't matter that the parties themselves had agreed that a term of their settlement was confidentiality. Nevertheless, the Supreme Court held that the person seeking access to any other documents must explain why they wish to see it and confidentiality may override the non-parties' reasons for wanting to see a document in certain circumstances.

Expect the worst

It remains to be seen whether the case will lead to an increase in successful applications for access to court documents. Nonetheless, this case is a reminder that documents referred to in the course of litigation (which may commercially sensitive materially) may end up being obtained by others who are not party to the litigation.