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Open justice ‘victory’ revisited

Date:19 SEP 2019
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Solicitor Advocate

Laws governing the release of court material to non-parties in civil cases post Cape Intermediate are clear, but has the decision moved transparency laws forward for family proceedings? David Burrows reports

The Supreme Court’s decision in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2019] All ER (D) 161 (Jul) is important in the development of attempts by individuals who are not parties to litigation (‘non-parties’) to find out about a case by having access to court documents.

The news story in NLJ (‘Victory for open justice’, NLJ online, 31 July 2019) reports that the Supreme Court said of the case: ‘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.’ The court did say that, but only because they were quoting what the Asbestos Victims Forum were asking for. It is not what the court ordered.

The court agreed with the Court of Appeal ([2018] EWCA Civ 1795, [2018] All ER (D) 16 (Aug)). A limited—but important—variety of court material should be released to non-parties according to the demands of each individual case:

  1. Formal ‘records of the court’ which any party to the proceedings is entitled to see: eg written evidence filed in relation to an application, judgments or orders made in a public hearing and notices of appeal.
  2. The court has an inherent jurisdiction to order release of certain documents to comply with open justice principles, eg:
    • skeleton arguments (ie a summary of a parties’ case) and other documents written by parties’ lawyers and given to the judge;
    • other documents read by the judge;
    • witness statements which court rules require the parties to file at court (but not necessarily documents put in with such statements); and
    • any other material to comply with open justice principles.

This is not all the Asbestos Forum had asked for; but their case represents an important step forward from the law before the Court of Appeal judgment.

Cape Intermediate & the family courts

All this is clear for civil cases; but has it moved transparency laws forward for family proceedings? Does it alter any power for family courts to release court material to non-parties: eg to police; to journalists and others who can attend hearings; to legal researchers and bloggers; to members of concerned charities and other such bodies (eg children’s charities); and so on?

Cape Intermediate v Dring concerned an asbestos victim support group (represented by Mr Dring) who were not a party to the original proceedings. They applied (under Civil Procedure Rules 1998 (CPR 1998) r 5.4C) to have access to all the documents from an asbestosis personal injury case, which had been settled by the time of the application. No judgment was given on the original case. A master ordered release of a wide number of documents in the case to the forum. The original defendant appealed. Because of the importance of the issue, the appeal went directly to the Court of Appeal.

The issues were summarised by Lady Hale (who gave the judgment of the court: Lord Briggs, Lady Arden and Lords Kitchen and Sales) as:

  1. What is the extent of r 5.4C(2) (supply of documents to a non-party from court records)? 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?
  2. Does a court have an inherent power to order release of material?
  3. If so:
    • 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 of certain court material under rules (eg r 5.4C) and in the court’s inherent jurisdiction. The court emphasised the importance of the ‘open justice principle’ (explained by the Court of Appeal in R (on the application of Guardian News and Media Ltd) v City of Westminster Magistrates' Court [2012] EWCA Civ 420, [2012] All ER (D) 18 (Apr)).

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Cape Intermediate & the family lawyer

The case formally applies only to CPR 1998 proceedings, ie not to family proceedings. However, the Supreme Court makes clear that its decision is intended to extend to all proceedings covered by the common law, ie including all family proceedings. This is subject to proceedings which involve private material, or for example, material relating to children (see eg the list in CPR 1998 r 39.2(3)); but not necessarily only where the court has ordered a private hearing.

Guardian v Westminster - referred to extensively by the Supreme Court—involved a successful journalist’s application for release of court material from criminal proceedings. Toulson LJ explains at [1] (cited by Lady Hale) ‘open justice’: ‘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….’

Guardian v Westminster applies to criminal proceedings, and Cape Intermediate to civil. So what of family proceedings? Open justice applies to all common law courts. This is explained in Cape Intermediate (at [41]) by setting out four principles (emphasis added):

  1. Open justice ‘applies to all courts and tribunals exercising the judicial power of the state’.
  2. Thus ‘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’ etc.
  3. ‘Court’s rules [are] not determinative (save to the extent that they may contain a valid prohibition)’ of the issue.
  4. It is not a question of the limits of the court’s jurisdiction. ‘What is… in question is how that jurisdiction should be exercised in the particular case.’

The open justice principle applies to family courts. Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 (still the leading case on the assertion by the House of Lords of open justice) was a nullity case (ie family proceedings). Access may be denied in certain defined circumstances (Cape Intermediate at [46]): ‘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’.

Rule-making powers & the common law

So how does the common law affect proceedings in family courts? In Guardian v Westminster, Toulson LJ explained how the common law has developed the open justice principle [69]: ‘[It] is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.’

Only statute can override the common law. Subject to that, the High Court has jurisdiction as to how open justice should be applied. Rules are not ‘determinative’ (see [41] above). So what do FPR 2010 say about release of documents to non-parties? Rule 29.12(1) states: ‘… No document or copy of a document filed or lodged in the court office shall be open to inspection by any person without the permission of the court, and no copy of any such document or copy shall be taken by, or issued to, any person without permission.’

According to r 29.12(1) the court the court can give ‘permission’. However, in Appleton and Gallagher v News Group Newspapers [2015] EWHC 2689 (Fam), [2015] All ER (D) 131 (Sep), Mostyn J took r 29.12(1) head on. He asserted at [13]: ‘… Further the press are not allowed any access to documents whatsoever—see FPR 29.12.’ If this is what r 29.12(1) says—and with respect to the rule-makers, the rule is not clear—it is not what Cape Intermediate v Dring says. Mostyn J’s words were obiter: they are unlikely to represent the law. A rule cannot change the common law save where statute permits (see Lady Hale in Dunhill (a protected party by her litigation friend Tasker) v Burgin [2014] UKSC 18, [2014] 2 All ER 364 at [27]: ‘[Rules cannot] change the substantive law unless expressly permitted so to do by statute’).

Even where a case is heard in private, can documents be released to non-parties? Clibbery v Allan [2002] EWCA Civ 45, [2002] All ER (D) 281 (Jan) (a case cited extensively by Mostyn J in Appleton) concerned family proceedings heard in private. A circuit judge had refused to make an occupation order injunction (under Family Law Act 1996, Pt 4) on Ms Clibbery’s application. After the hearing she passed documents in the case to The Daily Mail. Mr Allan sought an injunction to prevent publication. The injunction was granted on an interim basis but refused by Munby J, and his refusal was upheld by the Court of Appeal. Ms Clibbery was allowed to publish documents from proceedings heard in private. That remains the law today.

Cape Intermediate v Dring & release of court material in family proceedings

Cape Intermediate v Dring applies to all courts covered by the common law, including family proceedings (though privacy will dictate more exceptions). Each case, in any jurisdiction, where a non-party applies—eg media; other researcher; interested charity or other group—must be considered on its individual facts. On Cape’s appeal and Dring’s cross appeal the Supreme Court upheld the Court of Appeal’s decision.

CPR 1998 r 5.4C will be applied by analogy in any family case. Any implication in FPR 2010 r 29.12(1) to the contrary cannot be ‘determinative’ of the release issue. Clibbery v Allan and Cape Intermediate v Dring explain what can be released from family proceedings; subject always to statutory and common law principles on privacy (best summarised in CPR 1998 r 39.2(3)).

This article was first published by New Law Journal. Reproduced with permission.