Access by non-parties to court documents
The issues in the ‘important case’ of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK)  UKSC 38 (29 July 2019) (Cape Intermediate v Dring) were summarised by Lady Hale (who gave the judgment of Court consisting of Lord Briggs, Lady Arden and Lords Kitchen and Sales) at  as:
- What is the extent of Civil Procedure Rules 1998 (CPR 1998) r 5.4C(2) (supply of documents to a non-party from court records: see commentary on this rule and the case in the Court of Appeal in Family Court Practice 2019 at 3.2016)? Does the rule ‘give the court power to order access to all documents which have been filed, lodged or held at court’; or is it more limited, as held by the Court of Appeal in  EWCA Civ 1795 (31 July 2018).
- Is access to court documents governed solely by the CPR 1998, save in exceptional circumstances, as the appellant (Cape Intermediate) argues? Or does the court have an inherent power to order access separate from the rules?
- If there is such a power, how far does it extend and how should it be exercised?
The Supreme Court upheld the decision of the Court of Appeal that, for good reason, the court can order release to non-parties of certain court material, in its inherent jurisdiction. In so doing the Court sustained the open justice principle as defined by the Court of Appeal in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  EWCA Civ 420,  QB 618 (Guardian v Westminster)). The background to the issues in this case were looked at in the ICLR blog at ‘Release of family courts hearing documents’; and Cape Intermediate v Dring in the Court of Appeal was reviewed fully in a series of articles entitled ‘Court documents: Part 1, Part 2, Part 3 and Part 4’.
Cape Intermediate and the family lawyer
On the face of it, Cape Intermediate v Dring applies only to proceedings under CPR 1998 (ie not to family proceedings: CPR 1998 r 2.1(2)). But as the Supreme Court makes clear, its decision is intended to extend to all proceedings covered by the common law (ie criminal cases and all forms of civil proceedings). And this plainly includes proceedings under Family Procedure Rules 2010 (FPR 2010) and in all family courts, subject to the exceptions (see in ) in line with where the court will order private hearing (see CPR 1998 r 39.2(3), and considered later in this article).
The Supreme Court decision is based on the open justice principle fully explained by Toulson LJ in Guardian v Westminster (successful disclosure of criminal proceedings documents to The Guardian). Lady Hale cites Toulson LJ:
 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 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.
Guardian v Westminster has been frequently referred to since 2012. Notably, it was affirmed by the Supreme Court in Kennedy v The Charity Commission  UKSC 20,  1 AC 455 and A v British Broadcasting Corporation  UKSC 25,  1 AC 558. The concept of open justice goes back at least to Scott & Anor v Scott  UKHL 2,  AC 417, where the House of Lords explained the long history of the principle (and see ICLR blog: ‘To be heard in the dining hall…’: Scott 100 years on’).
The application of the principle to all common law courts – that, not just to courts which are subject to CPR 1998 – is explained clearly in Cape Intermediate v Dring where the Supreme Court says:
 The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question. The extent of any access permitted by the court’s rules is not determinative (save to the extent that they may contain a valid prohibition). It is not correct to talk in terms of limits to the court’s jurisdiction when what is in fact in question is how that jurisdiction should be exercised in the particular case.
Cape Intermediate v Dring and the family courts
Not least of all, the open justice principle applies to family courts, though with the variety of exceptions trailed in Scott (above), and now more specifically summarised in Administration of Justice Act 1960 s 12(1) and CPR 1998 r 39.2(3) (see Part 2). A summary of these statutory provisions is provided in Dring:
 … There may be very good reasons for denying access [to documents]. The most obvious ones are national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality….
So how does the case impact on the family courts? It raises a number of important questions, which these articles must address. First, to what extent does Cape Intermediate v Dring apply to family proceedings at all? The case summarises the common law on open justice. To what extent, if at all, can the common law be overlaid by a rule?
First, what are the rules in question here; and how do they apply to civil proceedings after Dring? CPR 1998 r 5.4C (as relevant here) provides, under the heading, ‘Supply of documents to a non-party from court records’):
(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.
In addition, CPR 1998 PD5A para 4.2 sets out a variety of formal ‘records of the court’ which any party to the proceedings is entitled to: for example, written evidence filed in relation to an application, judgments or orders made in public and any notices of appeal.
The parallel rule in family proceedings (not cited in Dring) is FPR 2010 r 29.12(1) which says – a little elusively, it might be thought – under the heading ‘Access to and inspection of documents retained in court’ that save where the rules or a practice direction otherwise provides ‘no document filed or lodged in the court office shall be open to inspection by any person without the permission of the court’. In context the term ‘inspection’ (see also FPR 2010 r 21.1(2)) can be taken to mean inspection and copying for a suitable fee; though no mention is made here specifically of non-party inspection. Again perhaps that can be implied; but the law must surely be clearer on this point.
Cape Intermediate v Dring: the case and the decision in the Court of Appeal
Cape Intermediate v Dring gives the Supreme Court an opportunity to consider how much of written material provided to the court by the parties themselves should be accessible to those not directly party to proceedings (ie ‘non parties’). It continues an important line of authority going back to the minority speech of Lord Scarman in Harman v Secretary of State for the Home Department  1 AC 280,  2 WLR 338 and Lord Bingham in Smithkline Beecham Biologicals SA v Connaught Laboratories Inc  EWCA Civ 1781,  4 All ER 498,  FSR 1 (both cited in the Supreme Court).
The case itself came about after an asbestos victim support group (Mr Dring was an officer of the group), not party to the initial proceedings, made an application to have access to all the documents from a settled personal injury asbestos case. The defendant from the initial trial appealed against the granting of such an order which had been made by a Master under the provisions of CPR 1998 5.4C (above).
The Court of Appeal ( EWCA Civ 1795 (31 July 2018)) narrowed the ambit of an earlier Master’s order and held (on direct appeal from the Master) that the court could give permission for release to a non-party the following (and see summary in the Supreme Court decision at  to ):
- The documents summarised in para 4.2 (above); but not including, necessarily, trial bundles.
- In its inherent jurisdiction the court generally, has an inherent jurisdiction to permit non-parties to obtain certain documents (see ); GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection  1 WLR 984 at 994-5). The main rationale for application of the inherent jurisdiction is to accord with the open justice principle and to enable anyone permitted to attend court to make sense of proceedings (see eg Guardian v Westminster). The following documents might be released:
- skeleton arguments and other written submissions (Cape Intermediate at ; GIO (above));
- documents the judge has read or has been asked to read in court or in a skeleton argument (Lilly Icos v Pfizer Ltd  EWCA Civ 2,  1 WLR 2253; and see CPR 1998 r 31.22);
- witness statements ‘during the course of the trial’ (CPR 1998 r 32.13) including experts reports (Cape Intermediate at ), but not their exhibits (Cape Intermediate at ); and
- any other document which it is necessary for the court to release to comply with the open justice principle (Cape Intermediate at ).
- The Court of Appeal sent to Picken J a decision as to whether certain other specific documents fell within (2) above or otherwise required release to comply with open justice principles.
On Cape’s appeal and Dring’s cross appeal the Supreme Court upheld the Court of Appeal’s decision. Limits remain on application of r 5.4C; but in general terms the spirit of the important Court of Appeal open justice principle decision in Guardian v Westminster has been developed by the Supreme Court and Court of Appeal and related more generally to civil proceedings.
So where does this leave the non-party in family proceedings? The next article looks at the extent to which FPR 2010 r 29.12 is compliant with the common law; and, if it is not, whether it is within the statutory powers of the rule-makers (Family Procedure Rules Committee). Subject to that, what are the powers of family judges to order release of documents from family proceedings?