Hearing documents and Cape Intermediate v Dring
Part 1 of this series looked at the types of family courts hearings and who may attend. Part 2 deals with the open court principle and its importance, generally, in looking at what documents may be released to non-parties. This Part deals with the case of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group)  EWCA Civ 1795 (‘Cape Intermediate v Dring’) and its significance in relation to the documents concerned and their release to non-parties – but in open court civil proceedings. Finally, Part 4 will suggest how the law, as explained in the first three Parts, applies to non-parties who attend private family hearings or who may want to know more about such cases afterwards (eg journalists, lawyers, academics or family members – even perhaps a child involved, as the child gets older).
In this series, documents are categorised as:
- Court documents – Documents ‘from the court records’ (as explained in Cape Intermediate v Dring);
- Hearing documents – Court documents for which a non-party is entitled to apply: eg to make sense of the proceedings or for a particular journalistic purpose (eg skeleton arguments, parties statements, expert reports etc).
- Disclosed documents – Use, or other release, of documents whose production has been compelled by disclosure rules.
- Trial documents – Documents prepared for the judge and at a court hearing.
Cape Intermediate v Dring: the case
The respondent to the appeal in Cape Intermediate v Dring (above) were a group (Asbestos Victims Support Group: Mr Dring was their representative) who provided help and support to asbestos victims, and who acted also as a pressure group to raise awareness of asbestos dangers. Cape Intermediate (CIH) had been involved in litigation taken by mesothelioma victims. The litigation settled before the end of a six-week trial. A very substantial volume of documentation was involved. Following settlement ASVG applied under Civil Procedure Rules 1998 (CPR 1998) r 5.4C for release to them of what amounted to a substantial proportion of the trial bundles. The Master granted the substantial part of their application. CIH appealed. The appeal was transferred direct to the full Court of Appeal (CPR 1998 r 52.23) because of the issues involved, instead of being dealt with by a single judge.
CPR 1998 apply to this case. These rules, and therefore the case, do not formally apply to family proceedings, save where – as in this case – the hearing was in the Court of Appeal. However, so far as the case and CPR 1998 define the common law, they do apply to family proceedings. (All appeals to the Court of Appeal in family cases are in open court (Norman v Norman  EWCA Civ 49,  1 WLR 2523); and parties must provide the media with copies of their skeleton arguments, anonymised in children cases (CPR 1998 PD52C para 33)).
There are no rules for inspection of documents in family proceedings under FPR 2010 save FPR 2010 r 29.12, which says that ‘no document… filed or lodged in court shall be open to inspection by any person without the permission of the court’, and no such document can be taken by or issued to any person save with permission. In Appleton & Gallagher v News Group Newspapers Ltd & PA  EWHC 2689 (Fam),  2 FLR 1, Mostyn J treated this as meaning that the press are not allowed to see documents (at ). This is not what the words say, even if the common law permitted what Mostyn J says which Guardian News (as now explained by Cape Intermediate v Dring) suggests is not the case. Indeed, the wording of r 29.12(1) seems to be consistent with the inherent jurisdiction role of the court explained by Guardian News (which should have been available to Mostyn J, but is not cited by him) and since by Cape Intermediate v Dring: that with permission documents are open to inspection. And those two cases, whatever the rules may say, define the common law. This must now be explained.
The common law position after Cape Intermediate v Dring
The lode-star for Hamblin LJ is GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection  1 WLR 984 (also cited in Guardian News). He reviewed the case extensively at -; and drew four main conclusions from it:
- That ‘the court has an inherent jurisdiction to allow non-parties to obtain copies of skeleton arguments/written submissions used in lieu of oral submissions… open justice requires that the public have the same opportunity to understand the issues in a case as they would have had if the openings had been given orally’ (at ).
- The court’s inherent jurisdiction does not permit non-parties to have access to trial documents generally, even if they have been referred to in witness statements, in skeleton arguments, or in court, or have been read by the judge (see ).
- There is no inherent jurisdiction to allow non-party access to trial documents merely because they are referred to in eg a skeleton argument or witness statement (GIO; ; and explaining at  why NAB v Serco Ltd & Anor  EWHC 1225 (QB), Bean J was wrongly decided to the extent that it extended the range of documents to be released).
- GIO ‘emphasises the importance of the principle of open justice and recognised that the forthcoming CPR might provide for a wider right of access of non-parties to documents’; though, said Hamblin LJ ‘the scheme and provisions of the most relevant provisions of the rules are materially similar under the CPR and the RSC’ ().
Once a document has been ‘read or used in court’ then any ‘confidence in the document’ goes (Buxton LJ in Lilly Icos v Pfizer Ltd  EWCA Civ 2,  1 WLR 2253 at ; CPR 1998 r 31.22(1)(a)). And so, concluded Hamblin LJ:
‘ The trilogy of cases, SmithKline Beecham, Barings [Barings v Coopers & Lybrand  1 WLR 2353, CA, also earlier cited by the judge] and Lilly Icos, support a broad approach to what documents are to be treated as read by the court for the purpose of CPR 31.22(1)(a) and involve an assumption that the judge will have read documents to which he has been specifically referred. As is noted in Lilly Icos at , this only applies to documents “to which the judge has been specifically alerted, whether by reference in a skeleton argument or by mention in the “reading guide” with which judges are now provided”.’
Release of documents: inherent jurisdiction
Hamblin LJ concluded this passage of the judgement by helpfully summarising the range of documents which might be covered by the inherent jurisdiction. These documents may be those which are released by the court to a person attending a family trial in private under r 27.11(2) and subject to the constraints in civil proceedings of Administration of Justice Act 1960 s 12(1)(a). The following can be released to non-parties for inspection:
- Skeleton arguments and ‘other advocates documents provided’ to assist the court ().
- Witness statements: under CPR 1998 r 32.13 non-parties are entitled to inspect witness statements. (There is no equivalent rule in FPR 2010.)
- Experts reports: the same applies as for expert’s reports (); but –
- Exhibits to statements/reports – GIO is authority that the court has no inherent jurisdiction to authorise inspection of exhibits (); and this applies to non-inspection where they are referred to ().
- Documents read or treated as read in court – CPR 1998 r 31.22 ().
- Other documents to meet the open justice principle ().
Of these the last two require further comment. Documents treated as read in modern litigation will be numerous (-); but these must be clearly defined and must not leave non-parties in ‘a markedly better position than they would have been when’ everything was read out or otherwise orally dealt with in court (). Thus said Hamblen LJ:
‘ Based on current civil court practices, I would accordingly confine the jurisdiction to documents which are read out in open court; documents which the judge is invited to read in open court; documents which the judge is specifically invited to read outside court, and documents which it is clear or stated that the judge has read. These are all documents which are likely to have been read out in open court had the trial been conducted orally.’
Finally, there may still be further documents which may need to be read to comply with the open justice principle. Thus, said Hamblen LJ, referring back to Guardian News, the court has an inherent jurisdiction to decide how the open justice principle applies’ (). For himself, Hamblen LJ defined the open justice principle and in the context of hearing documents:
‘ The principle of open justice requires seeking to place non-parties in an equivalent position to that which they would have been in had the trial been conducted orally, as trials used to be. It is in relation to the reading of documents that the tension between efficient and open justice is most acute. It is increasingly common for judges to be invited to read documents for themselves. That may arise during the course of the hearing itself, or it may involve pre-reading, overnight reading or post-hearing reading.’
The final question for this series is to ask whether these clearly stated, mostly common law, principles apply to family proceedings where someone wants documents released, because they are planning to attend court or because they want to see material following a hearing.