‘... whereas in the olden days civil proceedings were dominated by the spoken word - oral evidence and oral argument, followed by an oral judgment, which anyone in the court room could hear, these days civil proceedings generate a great deal of written material - statements of case, witness statements, and the documents exhibited to them, documents disclosed by each party, skeleton arguments and written submissions, leading eventually to a written judgment’.
In edition 257 of BC Disease News (here), we reported that the Supreme Court had granted an asbestos manufacturer and supplier permission to contest the Court of Appeal decision in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group)  EWCA Civ 1795, which we summarised in edition 242 (here).
This week, the Supreme Court handed down judgment on appeal.
The background facts of the claim are as follows.
Multiple employers’ liability (EL) insurers paid damages to workers who had contracted mesothelioma as a result of their employment with companies that held EL insurance cover. Subsequently, in 2017, these insurers brought product liability (PL) claims against Cape Intermediate Holdings for a contribution of the damages, on the basis that the product was defective. It was specifically alleged that:
- Cape had been negligent in the production of asbestos insulation boards;
- That it knew of the risks of asbestos;
- That it had failed to take steps to make those risks clear; and
- That this failure had obscured, understated and unfairly qualified the information that it had, thus providing false and misleading reassurance to employers and others.
In the course of proceedings, ‘voluminous documentation was produced’, with the core bundle amounting to over 5,000 pages, compiled in 17 lever arch files. This was the bulk of the documents obtained on disclosure. A 6-week trial was listed in the High Court, before Picken J.
The trial never went ahead, though, as the PL claims settled by way consent order, pre-trial.
On the back of this claim, the Asbestos Victims Support Groups Forum (AVSGF) UK made an application, pursuant to CPR 5.4C(2), in order to obtain access to the ‘records of the court’ (all the documents used at or disclosed for the trial, including the trial bundles, as well as the trial transcripts) as a non-party to the settled proceedings.
The purpose of the application, therefore, was to better understand the knowledge of the asbestos industry of the dangers of asbestos, the research which the industry and industry-related bodies had carried out, and the influence which they had had on the Factory Inspectorate and the Health and Safety Executive in setting standards. Discussion on these issues is pivotal in relation to findings of breach of duty in asbestos-related disease claims.
The High Court Ruling
Master Victoria McCloud, at the High Court (reported in BCDN here), allowed the claimant’s application ‘in favour of the principle of open justice’ and granted permission to obtain copies of:
- The witness statements including exhibits.
- Expert reports.
- Disclosed documents relied on by the original parties at trial contained in the paper bundles only.
- Written submissions and skeletons arguments.
- Statements of case to include requests for further information and answers if contained in the bundles relied on at trial.
The Court of Appeal Ruling
On appeal to the Court of Appeal, the Master’s Order was set aside, as the ‘records of the court’ were ‘limited’ to statements of case (f), but the Court could still permit access of (a) to (e) if its ‘inherent jurisdiction’ was satisfied.
When is the Court likely to exercise its ‘inherent jurisdiction’?
Hamblen LJ established that the correct approach is to balance the reasons for seeking disclosure against the reasons for preserving confidentiality, which will ultimately lean in favour of disclosure if the principle of ‘open justice’ is engaged and the applicant has a ‘legitimate interest’ in inspecting the documents.
In this case, there was ‘inherent jurisdiction’ to allow non-parties inspection of:
- Trial bundles.
- 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.
Whereas, there was no ‘inherent jurisdiction’ to allow non-parties inspection of:
- 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.
- 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.
- 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.
- Any specific document or documents which it is necessary for a non-party to inspect in order to meet the principle of open justice.
The Supreme Court Ruling
On appeal to the Supreme Court, Cape argued that the Court of Appeal should not have exercised its ‘inherent jurisdiction’ and restricted disclosure to documents encompassed within CPR 2.3.
By contrast, Dring cross-appealed by asserting that the Court of Appeal had been too restrictive in its interpretation of CPR 5.4C and should have treated ‘any document’ filed at court as part of the court’s ‘records’.
In a unanimous decision, Lady Hale explained that both parties’ appeals were ‘incorrect’, instead finding in favour of disclosure on the grounds of ‘inherent jurisdiction in support of the open justice principle’:
‘The Court of Appeal not only had jurisdiction to make the order that it did, but also had jurisdiction to make a wider order if it were right to do so’.
‘... the default position is that the public should be allowed access, not only to the parties’ written submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing’.
Electing to send the matter back to Picken J, at the High Court, Lady Hale was satisfied that there was ‘no realistic possibility of the judge making a more limited order’ than the Court of Appeal, when applying the principles enunciated by the Supreme Court.
Thus, Picken J, at a forthcoming application hearing, will only need to determine ‘whether the court should require the appellant to provide a copy of any other document placed before the judge and referred to in the course of the trial to the respondent (at the respondent’s expense)’.
Claimant lawyers have heralded this ruling as a ‘landmark decision for access to documents to non-parties’.[i]
Full text judgment can be accessed here.
[i] Neil Rose, ‘Supreme Court backs public access to court documents’ (29 July 2019 Litigation Futures) <https://www.litigationfutures.com/news/supreme-court-backs-public-access-to-court-documents> accessed 2 August 2019.