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Petitioner: CAPE INTERMEDIATE HOLDINGS LTD. VS Respondent: DRING (for and on behalf of Asbestos JUDGMENT
Court Name: Supreme Court of United Kingdom Judge(s): Lord Briggs, Lord Sales, Lady Hale, Lord Kitchin, Lady Arden, President Title:CAPE INTERMEDIATE HOLDINGS LTD. vs DRING (for and on behalf of Asbestos
JUDGMENT
Reported As: 2019 SCMR 1660 Result: Order accordingly Judgment JUDGMENT LADY HALE, DELIVERING THE JUDGMENT OF THE COURT : 1. As Lord Hewart CJ famously declared, in R v Sussex Magistrates, Ex p McCarthy [1924] 1 KB 256, 259, "... it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done". That was in the context of an appearance of bias, but the principle is of broader application. With only a few exceptions, our courts sit in public, not only that justice be done but that justice may be seen to be done. But 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. It is standard practice to collect all the written material which is likely to be relevant in a hearing into a "bundle" - which may range from a single ring binder to many , many volumes of lever arch files. Increasingly , these bundles may be digitised and presented electronically , either instead of or as well as in hard copy . 2. This case is about how much of the written material placed before the court in a civil action should be accessible to people who are not parties to the proceedings and how it should be made accessible to them. It is, in short, about the extent and operation of the principle of open justice. As Toulson U said, in R (Guardian News and Media Ltd) v City of Westminster Magistrates' Court (Article 19 intervening) [2012] EWCA Civ 420; [2013] QB 618 ("Guardian News and Media"), at pars 1: "Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age
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old question. Quis custodiet ipsos custodes - who will guard the guards themselves? In a democracy , where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law , for better or for worse." The history of the case 3. The circumstances in which this important issue comes before the court are unusual, to say the least. Cape Intermediate Holdings Ltd ("Cape") is a company that was involved in the manufacture and supply of asbestos. In January and February 2017, it was the defendant in a six-week trial in the Queen's Bench Division before Picken J. The trial involved two sets of proceedings, known as the "PL claims" and the "CDL claim", but only the PL claims are relevant to this appeal. In essence, these were claims brought against Cape by insurers who had written employers' liability policies for employers. The employers had paid damages to former employees who had contracted mesothelioma in the course of their employment. The employers, through their insurers, then claimed a contribution from Cape on the basis that the employees had been exposed at work to asbestos from products manufactured by Cape. It was alleged that Cape had been negligent in the production of asbestos insulation boards; that it knew of the risks of asbestos and had failed to take steps to make those risks clear; indeed, that it obscured, understated and unfairly qualified the information that it had, thus providing false and misleading reassurance to employers and others. Cape denied all this and alleged that the employers were solely responsible to their employees, that it did publish relevant warnings and advice, and that any knowledge which it had of the risks should also have been known to the employers. 4. Voluminous documentation was produced for the trial. Each set of proceedings had its own hard copy "core bundle", known as Bundle C, which contained the core documents obtained on disclosure and some documents obtained from public sources. The PL core bundle amounted to over 5,000 pages in around 17 lever arch files. In addition, there was a joint Bundle D, only available on an electronic platform, which contained all the disclosed documents in each set of proceedings If it was needed to refer to a document in Bundle D which was not in Bundle C, it could immediately be viewed on screen, and would then be included in hard copy in Bundle C. The intention was that Bundle C would contain all the documents referred to for the purpose of the trial, whether in the parties' written and oral opening and closing submissions, or in submissions or evidence during the trial. 5. After the trial had ended, but before judgment was delivered, the PL claims were settled by a consent order dated 14 March 2017 and sealed on 17 March 2017. The CDL claim was also settled a month later, before judgment. 6. The Asbestos Victims Support Groups Forum UK ("the Forum") is an unincorporated association providing help and support to people who suffer from asbestos-related diseases and their families. It is also involved in lobbying and promoting asbestos knowledge and safety . It was not a party to either set of proceedings. On 6 April 2017, after the settlement of the PL claims, it applied without notice, under the Civil Procedure Rules, CPR rule 5.4C, which deals with third party access to the "records of the court", with a view to preserving and obtaining copies of all the documents used at or disclosed for the trial, including the trial bundles, as well as the trial transcripts. This was because the Forum believed that the documents would contain valuable information about such things as 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 on the Factory Inspectorate and the Health and Safety Executive in setting standards. In the Forum's view, the documents might assist both claimants and defendants and also the court in understanding the issues in asbestos-related disease claims. No particular case was identified but it was said that they would assist in current cases. 7. That same day, the Master made an ex parte order designed to ensure that all the documents which were still at court stayed at court and that any which had been removed were returned to the court. She later ordered that a hard drive containing an electronic copy of Bundle D be produced and lodged at court. After a three day hearing of the application in October , she gave judgment in December , holding that she had jurisdiction, either under CPR rule 5.4C(2) or at common law, to order that a non-party be given access to all the material sought. She ordered that Mr Dring (now acting for and on behalf of the Forum) should be provided with the hard copy trial bundle, including the disclosure documents in Bundle C, all witness statements, expert reports, transcripts and written submissions. She
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did not order that Bundle D be provided but ordered that it be retained at court. 8. Cape appealed, inter alia, on the grounds that: (1) the Master did not have jurisdiction, either under CPR rule 5.4C or at common law, to make an order of such a broad scope; (2) to the extent that the court did have jurisdiction to grant access, she had applied the wrong test to the exercise of her discretion; and (3) in any event, she should have held that the Forum failed to meet the requisite test. 9. The appeal was transferred to the Court of Appeal because of the importance of the issues raised. In July 2018, that court allowed Cape's appeal and set aside the Master's order: [2018] EWCA Civ 1795; [2019] 1 WLR 479. It held that the "records of the court" for the purpose of the discretion to allow access under CPR rule 5.4C(2) were much more limited than she had held. They would not normally include trial bundles, trial witness statements, trial expert reports, trial skeleton arguments or written submissions; or trial transcripts. Nevertheless, the court had an inherent jurisdiction to permit a non-party to obtain (i) witness statements of witnesses, including experts, whose statements or reports stood as evidence-in-chief at trial and which would have been available for inspection during the trial, under CPR rule 32.13; (ii) docu ments in relation to which confidentiality had been lost under CPR rule 31.22 and which were read out in open court, or the judge was invited to read in court or outside court, or which it was clear or stated that the judge had read; (iii) skeleton arguments or written submissions read by the court, provided that there is an effective public hearing at which these were deployed; and (iv) any specific documents which it was necessary for a non-party to inspect in order to meet the principle of open justice. But there was no inherent jurisdiction to permit non-parties to obtain trial bundles or documents referred to skeleton arguments or written submissions, or in witness statements or experts' reports, or in open court, simply on the basis that they had been referred to in the hearing. 10. When exercising its discretion under CPR rule 5.4C(2) or the inherent jurisdiction, the court had to balance the non-party's reasons for seeking disclosure against the party's reasons for wanting to preserve confidentiality . The court would be likely to lean in favour of granting access if the principle of open justice is engaged and the applicant has a legitimate interest in inspecting the documents. If the principle of open justice is not engaged, then the court would be unlikely to grant access unless there were strong grounds for thinking it necessary in the interests of justice to do so (paras 127 and 129). 11. Accordingly , the court ordered, in summary: (i) that the court should provide the Forum with copies of all statements of case, including requests for further information and answers, apart from those listed in Appendix 1 to the order , so far as they were on the court file and for a fee, pursuant to the right of access granted by CPR rule 5.4C(1): (ii) that Cape should provide the Forum with copies of the witness statements, expert reports and written submissions listed in Appendix 2 to the order; and (iii) that the application be listed before Picken J (or failing him some other High Court Judge) to decide whether any other document sought by the Forum fell within (ii) or (iv) in para 9 above and if so whether Cape should be ordered to provide copies. Copying would be at the Forum's expense. Cape was permitted to retrieve from the court all the documents and bundles which were not on the court file and the hard drive containing a copy of Bundle In making this order , the Court of Appeal proceeded on the basis that clean copies of the documents in question were available. 12. Cape now appeals to this court. It argues, first, that the Court of Appeal should have limited itself to order (i) in para 11 above; second, that the Court of Appeal was wrong to equate the court's inherent jurisdiction to allow access to documents with the principle of open justice; the treatment of court documents is largely governed by the Civil Procedure Rules and the scope of any inherent jurisdiction is very limited; insofar as it goes any further than expressly permitted by the Rules, it extends only to ordering provision to a non-party of copies of (a) skeleton arguments relied on in court and (b) written submissions made by the parties in the course of a trial (as held by the Court of Appeal in GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection and Indemnity Association Ltd (FAI General Insurance Co Ltd intervening) [1999] 1 WLR 984 ("FAI")); and third, that the Court of Appeal was wrong to conclude that the Forum did have a relevant legitima te interest in obtaining access to the documents; the public interest in open justice was different from the public interest in the content of the documents involved. 13. The Forum cross-appeals on the ground that the Court of Appeal was wrong to limit the scope of CPR rule 5.4C
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in the way that it did. Any document filed at court should be treated as part of the court's records for that purpose. The default position should be to grant access to documents placed before a judge and referred to by a party at trial unless there was a good reason not to do so. It should not be limited by what the judge has chosen to read. 14. The Media Lawyers Association has intervened in the appeal to this court. It stresses that the way in which most members of the public are able to scrutinise court proceedings is through media reporting. The media are the eyes and ears of the public. For this, media access to court documents is essential. The need often arises after the proceedings have ended and judgment has been given because that is when it is known that scrutiny is required. The media cannot be present at every hearing. It cites, among many other apposite quotations, the famous words of Jeremy Bentham, cited by Lord Shaw of Dunfermline in the House of Lords in Scott v Scott [1913] AC 417, the leading case on open justice, at p 477, "Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity . It keeps the judge himself while trying under trial". The issues 15. There are three issues in this important case: (I) What is the scope of CPR rule 5.4C(2)? Does it give the court power to order access to all documents which have been filed, lodged or held at court, as the Master ruled? Qr is it more limited, as the Court of Appeal ruled? (II) Is access to court documents governed solely by the Civil Procedure Rules, save in exceptional circumstances, as- the appellant argues? Or does the court have an inherent power to order access outside the Rules? (III) If there is such a power , how far does it extend and how should it be exercised? Civil Procedure Rules, rule 5.4C 16. Rule 5.4C is headed "Supply of documents to a non-party from court records". For our purposes, the following provisions are relevant: "(1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of (a) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it; (b) a judgment or order given or made in public (whether made at a hearing or without a hearing),... (2) A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party , or communication between the court and a party or another person." 17. By rule 2.3(1), "statement of case" "(a) means a claim form, particulars of claim where these are not included in a claim form, defence, Part 20 claim, or reply to defence, and (b) includes any further information in relation to them voluntarily or by court order ..." 18. There are thus certain documents to which a non-party has a right of access (subject to the various caveats set out in the rule which need not concern us) and what looks at first sight like a very broad power to allow a non-party to obtain copies of "any other document filed by a party , or communication betwee n the court and a party or other person". Hence the Forum argues that the test is filing. CPR rule 2.3 provides that "'filing' in relation to a document means delivering it by post or otherwise to the court office". So, it is argued, any document which has been delivered to the court of fice has been filed and the court may give permission for a non-party to obtain a copy . 19. There are two problems with this argument. First, the fact that filing is to be achieved in a particular way does not mean that every document which reaches court in that same way has been filed: the famous fallacy of the undistributed middle. The second is that the copy is to be obtained "from the records of the court". The Civil Procedure Rules do not define "the records of the court". They do not even provide what the records of the court are to contain. Nor , so far as we are aware, does any other legislation. 20. The Public Records Act 1958 is not much help. It only tells us which records are public records and what is to be done with them. The person responsible for public records must make arrangements to select those which ought to be permanently preserved and for their transfer to the Public Record Office no later than 20 years after their creation (section 3). The Lord Chancellor is the person responsible for many court records, including those of the High Court and Court of Appeal (section 8). Section 10 and Schedule 1 define what is meant by a public record. Paragraph 4 of Schedule 1 includes the records of or held in the Senior Courts (i.e the High Court and Court of Appeal) in the list of records of courts and tribunals which are public records. We have been shown a document
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prepared by Her Majesty's Courts and Tribunals Service and the Ministry of Justice, headed Record Retention and Disposition Schedule. This lists how long various categories of files and other records are to be kept. Queen's Bench Division files, for example, are to be destroyed after seven years. Trial bundles are to be destroyed if not collected by the parties at the end of the hearing or on a date agreed with the court. This is of no help in telling us what the court files should contain. 21. We have been shown various historical sources which indicate what the records of certain courts may from time to time have contained, but it is clear that practice has varied. Some indication of what the court records may currently contain is given by Practice Direction 5A, para 4.2A of which lists the docu ments which a party may obtain from the records of the court unless the court orders otherwise. These include "a claim form or other statement of Case together with any documents filed with or attached to or intended by the claimant to be served with such claim form"; "an acknowledgement of service together with any documents filed with or attached to or intended by the party acknowledging service to be served with such acknowledgement of service"; "an application notice", with two exceptions, and "any written evidence filed in relation to an application", with the same two exceptions; "a judgment or order made in public (whether made at a hearing or without a hearin g)"; and "a list of documents". It does not include witness statements for trial, experts' reports for trial, transcripts of hearings, or trial bundles. 22. The essence of a record is that it is something which is kept. It is a permanent or long-term record of what has happened. The institution or person whos e record it is will decide which materials need to be kept for the purposes of that institution or person. Practice may vary over time depending on the needs of the institution. What the court system may have found it necessary or desirable to keep in the olden days may be different from what it now finds it necessary or desirable to keep. Thus one would expect that the court record of any civil case would include, at the very least, the claim form and the judgments or orders which resulted from that claim. One would not expect that it would contain all the evidence which had been put before the court. The court itself would have no need for that, although the parties might. Such expectations are confirmed by the list in Practice Direction 5A. 23. The "records of the court" must therefore refer to those documents and records which the court itself keeps for its own purposes. It cannot refer to every single document generated in connection with a case and filed, lodged or kept for the time being at court. It cannot depend upon how much of the material lodged at court happens still to be there when the request is made. 24. However , current practice in relation to what is kept in the records of the court cannot determine the scope of the court's power to order access to case materials in particular cases. The purposes for which court records are kept are completely different from the purposes for which non-parties may properly be given access to court documents. The principle of open justice is completely distinct from the practical requirements of running a justice system. What is required for each may change over time, but the reasons why records are kept and the reasons why access may be granted are completely dif ferent from one another . Other court rules 25. There are other court rules which are relevant to the access to documents which may be granted to non- parties. CPR, rule 39.2 lays down the general rule that court hearings are to be in public. Rule 39.9 provides that in any hearing the proceedings will be recorded. Any party or other person may require a transcript (for which there will be a fee). If the hearing was in private , a non-party can get a transcript but only if the court so orders. A Practice Direction (Audio Recordings of Proceedings: Access ) [2014] 1 WLR 632 states that there is generally no right for either a party or a non-party to listen to the recording. If they have obtained a copy of the transcript, they can apply for permission to listen, but this will only be granted in exceptional circumstances, save to official law reporters. Nevertheless, the effect of rule 39.9 (which is wider than its predecessor) is that a non-party can (at a fee) obtain a transcript of everything that was said in court. 26. Rule 39.5 requires the claimant to file a trial bundle and Practice Direction 32, para 27.5, deals in detail with how these are to be prepared. Nothing is said about non-parties being granted access to them. 27. Rule 32 deals with evidence. If a witness who has made a witness statement is called to give evidence, the witness statement shall stand as his evidence in chief (rule 32.5(2)). A "witness statement which stands as evidence in chief is open to inspection unless the court otherwise directs during the course of the trial" (rule
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32.13(1)). The considerations which might lead the court otherwise to direct are listed as the interests of justice, the public interest, the nature of expert medical evidence, the nature of confidential information, and the need to protect a child or protected person (rule 32.13(3)). Rule 32.13 recognizes that the modern practice of treating a witness statement as evidence in chief (which dates back to the Report of the Review Body on Civil Justice (1988, Cm 394)) means that those observing the proceedings in court will not know the content of that evidence unless they can inspect the statement. The rule puts them back into the position they would have been in before that practice was adopted. 28. In FAI, FAI applied to inspect and obtain: copies of documents referred to in witness statements which they had obtained under the predecessor to rule 32.13 (Rules of the Supreme Court, Order 39, rule 2A); any written opening, skeleton argument or submissions, to which reference was made by the judge, together with any documents referred to in them; and any document which the judge was specifically requested to read, which was included in any reading list, or which was read or referred to during trial. The Court of Appeal held that RSC Order 38, rule 2A, the predecessor to CPR, rule 5.4C(2), did not, cover documents referred to in witness statements. The purpose of using witness statements was to encourage a "cards on the table" approach, to accelerate the disclosure of the parties' evidence as between themselves; it was not to enable non-parties to obtain access to documentation which would otherwise have been unavailable to them whether or not they had attended court. As to the inherent jurisdiction of the court, based on the principle of open justice, the same reasoning applied to documents referred to in court or read by the judge, unless they had been read out in court and thus entered the public domain. 29. Written submissions or skeleton argum ents were a different matter . The confidence of the public in the integrity of the judicial process must depend upon having an opportunity to understand the issues. Until recently this had been done in an opening speech, but if the public were deprived of that oppo rtunity by a written opening or submissions which were not read out, it was within the inherent jurisdiction of…
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