Access by non-parties to court documents
In the recent case of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK)  UKSC 38;  3 WLR 429;  WLR(D) 462 (29 July 2019) the Supreme Court considered the common law powers of the courts to order release of court documents to applicants who are not party to the proceedings (“non-parties”). This article considers what the case says for open justice and common law proceedings generally; and especially in family proceedings.
Lady Hale, giving the judgment of the court (with Lord Briggs, Lady Arden and Lords Kitchen and Sales), defined the issues  as:
“(1) 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)? 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 the decision appealled from ( EWCA Civ 1795 (31 July 2018)).
(2) 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?
(3) If there is such a power, how far does it extend and how should it be exercised?”
Inherent jurisdiction to order release
The court upheld the decision of the Court of Appeal ( EWCA Civ 1795;  1 WLR 479) 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“).
Some background to the issues in this case has been 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 on my own blog starting with ‘Court documents: Part 1…’.
On the face of it, Cape Intermediate v Dring applies only to proceedings under the Civil Procedure Rules (CPR 1998) (ie not to family proceedings: CPR r 2.1(2)). But the court makes clear that its decision is intended to extend to all proceedings covered by the common law (ie criminal cases and all forms of civil proceedings). This includes proceedings under Family Procedure Rules 2010 (FPR 2010) subject to private hearings exceptions (themselves defined by the common law, (see ); and summarised eg in Administration of Justice Act 1960, s 12(1) (AJA 1960) and CPR 1998 r 39.2(3)).
The decision is based on the open justice principle explained by Toulson LJ in Guardian v Westminster (successful disclosure of criminal proceedings documents to The Guardian). Lady Hale cites Toulson LJ at  at the outset of Cape Intermediate v Dring, at :
“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 in Kennedy v Charity Commission  UKSC 20,  1 AC 455 and A v British Broadcasting Corporation  UKSC 25,  1 AC 588. The concept of open justice goes back at least to Scott 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 importance of the common law to the development of open justice was emphasised by Toulson LJ who gave the lead judgment in Guardian v Westminster as follows:
“ The open justice principle 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.”
Subject only to overriding “statutory provision” the courts have an inherent jurisdiction to decide how the principle should be applied. And it was this inherent jurisdiction which was directly in question in Cape Intermediate v Dring.
Common law and the courts: civil courts and family courts
The application of the open justice principle to all common law courts “exercising the judicial power of the state” – that is, not just to courts which are subject to CPR 1998 – is explained in Cape Intermediate v Dring:
“ 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.”
Open justice applies to family courts, though with the variety of exceptions trailed in Scott v Scott (above) and now more specifically summarised in AJA 1960 s 12(1) and CPR 1998 r 39.2(3) (see Part 2). Dring summarises this as:
“ … 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….”
CPR r 5.4C and the inherent jurisdiction
What are the rules in question here; and how do they apply to civil proceedings after Cape Intermediate v Dring? CPR 1998 r 5.4C deals with ‘Supply of documents to a non-party from court records’ and, as relevant here, says:
“(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.”
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.
What is treated as the parallel rule in family proceedings (not cited in Cape Intermediate v Dring) is the elusive FPR 2010 r 29.12(1), which says:
“(1) … 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.”
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 generally 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 (both cited in the Supreme Court) and the extent to which non-parties can see documents read by the court but not available to them in open court. This was the main issue before the Court of Appeal in Guardian v Westminster.
The case which resulted in Mr Dring’s application related to 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 to the original trial appealed against the granting of the release an order which had been made by a Master under CPR r 5.4C (above).
The Court of Appeal  EWCA Civ 1795 (31 July 2018) narrowed the ambit of the Master’s order and held (on direct appeal from the Master) that the court had power to order release to a non-party of the following (summarised at  to ):
(1) The documents summarised in para 4.2 (above); but not necessarily including trial bundles.
(2) The court 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, for example:
- 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 r 31.22);
- witness statements ‘during the course of the trial’ (CPR 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 ).
(3) 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 CPR 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.
Release of court material to non-parties in family proceedings
So how does all this impact specifically on procedurally ghettoised – by CPR r 2.1(2) – family proceedings? What is the lawfulness of any restrictions – such as they are – in FPR 2010 and as set out in FPR r 29.12? Do any such restrictions apply after Cape Intermediate v Dring? Does that case prevent release of documents to non-parties where application is made to a family court?
The nearest FPR 2010 gets to dealing with release of documents to non-parties is, as set out above, at rule 29.12(1). According to existing case law and the rules, can the court give “permission”? The rule appears to say that “permission” can be given by the court to issue to “any person”, including – it must be assumed? – non-parties.
In Appleton & Gallagher v News Group Newspapers Ltd  EWHC 2689 (Fam),  2 FLR 1;  CN 1529 Mostyn J took this provision head on. He said what he thought it meant. Dealing with release to non-parties – in this case “the press” – he asserted categorically, at  “The press are not allowed any access to documents whatsoever – see FPR 29.12.”
Many readers – lawyer and non-party alike – will treat this as a statement of the law. To treat the judge’s comment as good law was always hazardous. What Mostyn J says is not what r 29.12(1) actually says. His comments are obiter (see below). It is not part of what he was asked to decide (the ratio decidendi) of the case. “ All I am being asked to decide today is whether [an] existing order, which restricts the reporting of the proceedings, should be lifted, or modified… “(italics added). If what the rule says is what Mostyn J says, it was not ever the law (eg it could not apply to divorce or domestic abuse proceedings). And his comment is made the more unlikely in the light of the law stated by the Court of Appeal and the Supreme Court in Cape Intermediate v Dring.
FPR r 29.12 as law
But suppose Mostyn J’s comments on FPR 2010 r 29.12(1) are correct. If the rule is not in accordance with primary law where does that leave it? A rule does not represent the law save where it summarises existing law’ as do many rules. CPR 1998 r 39.2(3) provides a good example. It sets out a modern list of civil proceedings which may be heard in private (and which is entirely apt to this discussion); and partly echoing AJA 1960 s 12(1).
A rule regulates the way the law operates – no more: see eg Buxton LJ in Jaffray v The Society of Lloyd’s  EWCA Civ 586,  1 WLR 75:
“ … The CPR [in that case CPR 1998 r 52.17], being rules of court, cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised. That is very trite law, but if authority is needed for the proposition it can be found in the speech of Lord Herschell LC in British South Africa Co v Companhia de Mocambique  AC 602 at p 628….”
A rule cannon change statute or common law. Lady Hale makes this point in Dunhill v Burgin (Nos 1 and 2)  UKSC 18,  1 WLR 933 (and in Dring (see below)) at  “[Rules cannot] change the substantive law unless expressly permitted so to do by statute”.
But do rule makers have any powers to change primary law? They can only do so – possibly: even that is not constitutionally entirely clear – if Parliament says so (ie “permitted so to do by statute”). Courts Act 2003 ss 75 and 76 define the terms of reference – delegated powers – of family proceedings rule makers (ie the Family Procedure Rule Committee). To a very limited extent that committee can “modify” certain legal principles.
Nothing is said in Courts Act 2003 about the Committee being able to alter the common law. It is significant that, still, in 2019, a family proceedings case (on the issue of nullity, now dealt with under the Matrimonial Causes Act 1973) – Scott v Scott  UKHL 2,  AC 417 – is treated by all common law courts as determinative of open justice principles. Rule-makers under the Courts Act 2003 or otherwise have no power to change that.
Clibbery v Allan
The common law conflict with Mostyn J’s assertion of what r 29.12(1) means can be easily illustrated by Clibbery v Allan  EWCA Civ 45,  Fam 261,  1 FLR 565. This case predates FPR 2010, but those rules cannot change the law as explained there. It is still good law as Mostyn J himself makes clear (see his citations at -) in Appleton v Gallagher). 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 some of the documents in the case to the Daily Mail. Mr Allan asked for a restraint injunction against Ms Clibbery or the newspaper.
An interim injunction was granted, but refused by Munby J on the return date ( 2 FLR 819). The Court of Appeal judgment turned on whether proceedings such as these (under Pt 4 of the 1996 Act) were private, and to what extent confidentiality of documents therefore applied. If proceedings were private, could there still be publication of documents, as Ms Clibbery had done? Dame Elizabeth Butler-Sloss P (with whom Thorpe and Keene LJJ agreed) held that publication by Ms Clibbery was permitted. Mr Allan’s injunction was discharged.
Clibbery v Allan defines how the law now stands on release of court documents in certain family proceedings. It directly contradicts what was asserted by Mostyn J in Appleton. Each case must be decided on its facts if a non-party applies for release as Cape Intermediate v Dring makes clear.
Cape Intermediate v Dring and common law courts
Cape Intermediate v Dring  UKSC 38;  3 WLR 429 applies to all courts covered by the common law (in family proceedings or otherwise). There may be more exceptions in family courts (see at : eg for children proceedings and ‘privacy interests’; and see eg AJA 1960 s 12(1)).
The question is: how the jurisdiction to release documents in a particular case – any case – should be exercised.
Where a non-party applies for court material – eg media; other researcher; interested charity or other group etc – the application must be considered on its individual facts. If the rules do indeed say something else, this cannot be “determinative” of the issue of what documents can be released (“ … The extent of any access permitted by the court’s rules is not determinative…”). Clibbery v Allan and Cape Intermediate v Dring explain what documents can be released from family proceedings; subject always to statutory (such as AJA 1960 s 12(1)) and common law principles on privacy (best summarised in CPR 1998 r 39.2(3)).
8 August 2019