Cape Disclosure Order Set Aside at Court of Appeal: Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group) [2018] EWCA Civ 1795

In edition 238 of BC Disease News (here), we reported that judgment had been reserved in the Cape disclosure appeal.

Last week, the Court of Appeal handed down judgment in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group) [2018] EWCA Civ 1795.

At the High Court, the claimant made a successful application, under CPR 5.4C, on behalf of the Asbestos Victims Support Groups Forum (AVSGF), a ‘non-party’. The application sought disclosure of court bundle documents in product liability proceedings involving Cape, which settled prior to judgment. Master McCloud reasoned that it was in the ‘public interest’ to allow the documents to remain disclosable.

The defendant appealed the Order on the following grounds:

‘(1) The Master failed correctly to identify which documents the court had power to permit a non-party to copy having regard to CPR 5.4C and the limited nature of the court's inherent jurisdiction in this regard ... The court had no jurisdiction to make the order that the Master made under CPR 5.4C.

(2) ... the Master applied the wrong discretionary test when determining whether AVSGF should be permitted to access them [documents] ...

(3) ... AVSGF failed to meet the requisite test, whether it be "strong grounds in the interests of justice" or merely a "legitimate interest" ...

(4) ... the Order made no provision to address the extraordinary and unprecedented volume of material to which she granted access’.

Ground 1 – The Extent of the Court’s Jurisdiction

At 1st instance, the Master found that all documents filed with the court, including ‘trial bundles and documents, such as skeleton arguments and transcripts’, were within the court’s jurisdiction and formed part of the Order for disclosure.

The defendant contended that no documents filed with the court (e.g. trial bundles), other than statements of case, were to be regarded as ‘records of the court’, for the purpose of CPR 5.4C. ‘Records of the court’ is not a defined term in the CPR.

So, what constituted a ‘record of the court’?

The claimant supported the Master’s original Order (including the ‘filed’ trial bundle), or alternatively, argued that the Master had power to make her Order under the court’s inherent jurisdiction.

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At paragraphs 54 and 55, Hamblen LJ ruled on the scope of the court’s jurisdiction, under CPR 5.4C, with respect to Master McCloud’s original Order:

‘The Order made in this case was of unprecedented scope and went far beyond the relatively narrow confines of CPR 5.4C(2). For the avoidance of doubt, I consider that it should be made clear that the "records of the court" for the purpose of that rule do not generally include:

(1) The trial bundles.

(2) The trial witness statements.

(3) The trial expert reports.

(4) The trial skeleton arguments or opening or closing notes or submissions.

(5) The trial transcripts.

It follows that the one category of the documents listed in the Order to which AVSGF is entitled are "Statements of case to include requests for further information and answers if contained in the bundles relied on at trial." Statements of case may be obtained without permission under CPR 5.4C(1)(a) and under CPR 2.3(1) "statement of case" includes particulars of claim, defence and reply and any further information provided’.

What then, of the court’s ‘inherent jurisdiction’ to provide access to documents?

Here, Hamblen LJ summarised the current position on ‘inherent jurisdiction’, based on authorities, at paragraph 112:

‘(1) There is no inherent jurisdiction to allow non-parties inspection of:

(i) trial bundles;

(ii) documents which have referred to in skeleton arguments/written submissions, witness statements, experts' reports or in open court simply on the basis that they have been so referred to.

(2) There is inherent jurisdiction to allow non-parties inspection of:

(i) Witness statements of witnesses, including experts, whose evidence stands as evidence in chief and which would have been available for inspection during the course of the trial under CPR 32.13.

(ii) Documents in relation to which confidentiality has been lost under CPR 31.22 and which are read out in open court; which the judge is invited to read in open court; which the judge is specifically invited to read outside court, or which it is clear or stated that the judge has read.

(iii) Skeleton arguments/written submissions or similar advocate's documents read by the court provided that there is an effective public hearing in which the documents are deployed.

(iv) Any specific document or documents which it is necessary for a non-party to inspect in order to meet the principle of open justice’.

Hence, he concluded, at paragraph 114:

‘In the light of my conclusion on inherent jurisdiction it follows that the Master had no jurisdiction to allow inspection of a number of the categories of documents identified in the Order. The documents for which it is likely that there was jurisdiction are the witness statements (but not exhibits), expert reports and written submissions and skeleton arguments. It may also be that there is jurisdiction to allow inspection of a number of the documents relied on at trial, but not on the generalised basis set out in the Order’.

Ground 2 – Exercising the Court’s Discretion, Under CPR 5.4C(2)

The defendant argued in favour of the approach taken by Moore-Bick J in Dian AO v Davis Frankel & Mead [2005], who considered that ‘anyone with a legitimate interest ought generally to be given permission for inspection’, in accordance with the principle of ‘open justice’. By this interpretation, documents that only relate to settled cases, as was the case in Cape, would not be covered by the principle, for the simple reason that if no judgment is delivered there is no need, nor is it possible, to supervise the judicial process’. What is relevant is not that documents are read by the court, but that they are read as part of the process of making an actual judicial decision.

However, Hamblen LJ did not believe that the open justice principle should be construed ‘narrowly’.

He rejected the 2nd ground of appeal, and leaned ‘in favour of granting permission under 5.4C(2) where the principle of open justice is engaged and the applicant has a legitimate interest in inspecting the identified documents or class of document. Conversely, where the open justice principle is not engaged, the court is unlikely to grant permission unless there are strong grounds for thinking that it is necessary in the interests of justice to do so’.

The judge went on to conclude, at paragraph 130:

‘As to CIH's appeal on this ground, in relation to all documents in respect of which I have found there to be jurisdiction [at paragraph 112] I reject the contention that the open justice principle is not engaged, and in particular that it is not so engaged because there was a settlement’.

Settlement does not preclude the engagement of ‘open justice’, nor ‘legitimate interest’.

Ground 3 – The ‘Legitimate Interest’ Test

The defendant submitted that the Master was wrong to assume that ‘because the AVSGF was pursuing "legitimate" (i.e. lawful) activities it could therefore show a "legitimate interest" in obtaining the documents on the application’.

However, Hamblen LJ found that the 3rd ground was not open to challenge on appeal, as AVSGF had a genuine ‘legitimate interest’. Adopting the reasoning of the Master in the decision below, AVSGF’s interest was of a ‘public nature’ and its involvement in ‘lobbying and promoting asbestos knowledge and safety’ as a ‘pressure group’ allowed it to qualify as providing a ‘legitimate interest’.

As such, in relation to the documents which fell within Master McCloud’s jurisdiction, at paragraph 112, the challenge on the 3rd ground failed.

Ground 4 – The Nature of the Master’s Order

Sir Brian Leveson commented on a ‘number of highly unsatisfactory features of the process adopted by the Master in relation to the handing down of her judgment and the making of an order at that hearing’. He suggested that steps should be taken to prevent these features reoccurring, whether by Practice Direction of Practice Note.

Conclusion

Hamblen LJ, with Newey LJ and Sir Brian Leveson in agreement, allowed the defendant’s appeal on the 1st ground and set aside the Order of Master McCloud on jurisdictional grounds. However, since there was jurisdiction to inspect certain categories of requested documents [at paragraph 112], the judge expected the parties to agree a new Order for disclosure evincing this.

Full text judgment can be accessed here.