Principle of open justice allows non-party to litigation proceedings access to court documents

Can someone who is not a party to a court case in England get access to court documents?  Does this extend to witness statements and documents lodged as evidence?  What does this mean for employers, claimants and witnesses in employment tribunals?  The Supreme Court had to consider these questions in the case of Cape Intermediate Holdings Ltd v. Dring [2019] UKSC 38.

In England and Wales the rules which regulate court proceedings are called the Civil Procedure Rules (CPR).  Under CPR 5.4C(2) a non-party to litigation may, if the court allows, “obtain from the records of the court a copy of any other document filed by a party”.  Statements of case, judgments and orders made in public are available without permission (under CPR 5.4C(1)).

The Supreme Court held that, as a default position, the public should have access not only to the parties’ submissions and arguments, but also to documents parties have placed before the court and referred to during the hearing.  In delivering the judgment, Lady Hale stressed the importance of justice being done in the open and emphasised that the public will only be able to understand how the justice system works and how judges reach their decisions (and be able to question the same) if they have access to the evidence and documentation relied upon during the proceedings.

However, the CPR does not grant an unfettered right of access.  The person making the application has to be able to explain:

  • why they are seeking access; and
  • how granting access would advance the open justice principle.

It is then up to the court to weigh up whether to allow the application, taking into consideration any risks of harm granting access might cause to the judicial process or the legitimate interests of others.  Reasons to deny access might include protecting the interests of children or national security, or to protect trade secrets and commercial confidentiality. This case is important for parties in employment tribunals too as Lady Hale was clear that the rule applied to all who exercise the power of the state.  The decision should not be interpreted as a “free for all”.  Where a third party is making a fishing expedition and does not have good grounds to receive the information, the court does have the discretion to withhold it. However, claimants, employers and witnesses should remember that tribunal proceedings are public and there are very limited rights to privacy.

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Sarah Jackman

About Sarah Jackman

Sarah specializes in employment law and is counsel in Dentons’ Glasgow office. She joined Dentons in 2019, bringing extensive experience in leading an in-house employment law team in the financial services sector. In her previous role, Sarah supported strategic initiatives following the financial crisis and, as a senior leader in the Legal and Governance team, led employees through cultural change and digitalization. Sarah led employment advice on significant change projects, including a demerger, IPO and acquisition of another bank.

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