Is a solicitor under a duty to warn their client of risks falling outside their retainer?
Clients often ask whether their documents will become publicly available once they are filed at court. The recent Court of Appeal judgment in Dring v Cape Intermediate Holdings Limited  EWCA Civ 1795 was a useful examination of the principle of open justice.
Under CPR 5.4C, which came into force on 2 October 2006, a person who is not a party to proceedings can access all statements of case filed at court after 2 October 2006 without the court’s permission. Clients should therefore assume that the claim form, particulars of claim, defence, reply, any Part 20 claim and any responses to requests for further information will be available to the public.
Further, if the court gives permission, a non-party can also obtain from the “records of the court” a copy of any other document filed by a party or communications with the Court. Crucially, the “records of the court” is not a defined term under the CPR.
Mr Graham Dring made an application on behalf of the Asbestos Victims Support Groups Forum (AVSGF), a network of asbestos victim support groups, to obtain access to documents referred to in previous litigation against Cape Intermediate Holdings (CIH). That previous litigation involved two sets of claims brought against CIH relating to mesothelioma and allegations of exposure to asbestos. The claims were heard in early 2017 but settled before judgment in March 2017.
Mr Dring and AVSGF were not a party to the litigation. However, on 6 April 2017 Mr Dring’s solicitors issued a without notice application under CPR 5.4C to obtain all documents used at or disclosed for the trial of the earlier claims. This was partly on the basis that these documents constituted “records of the court”.
At first instance, the Master agreed with Mr Dring and ordered extensive disclosure. She held that an applicant was in principle entitled to all documents filed at court, which would include paper copies of the trial bundles. Her Order was unprecedented in its breadth. On the day judgment was handed down the Master allowed lawyers for Mr Dring to walk away from the court carrying boxes of court documents.
The Court of Appeal took a different approach. Hamblen LJ made it clear that filing documents with the court does not automatically make them part of the court record. Hamblen LJ also held that there is no inherent jurisdiction to allow non-parties to obtain access to trial bundles and trial documents even if they have been referred to in court documents or in open court. The Court also made a number of comments about the way that the Master had approached the matter at first instance.
The availability of documents to non-parties is a difficult balancing act for the court and the common law has long recognised the importance of the open justice principle.
AVSGF argued that CPR 5.4C is intended to give effect to the open justice principle and that a broad rather than a narrow interpretation should therefore be given to the meaning of the “records of the court”.
CIH argued that the “records of the court” relates only to formal documents filed at court, documents generated during the proceedings and correspondence with the court. The Court of Appeal broadly agreed. In particular, the Court of Appeal held that the “records of the court” do not include trial bundles. Trial bundles are for the judge to use; they are not stored in the court office and are routinely destroyed after the conclusion of proceedings. The administrative burden for the court would be huge if trial bundles had to be retained. However, Hamblen LJ endorsed the approach that where the principle of open justice is engaged and the applicant has a legitimate interest in inspecting certain documents, permission is likely to be granted.
The position taken by the Court of Appeal in Dring v Cape clarifies that there is no inherent jurisdiction to allow non-parties inspection of (i) trial bundles or (ii) documents which have referred to in skeleton arguments/written submissions, witness statements, experts’ reports or in open court simply on the basis that they have been referred to. However, the court does have inherent jurisdiction to allow non-parties inspection of (i) witness statements where the evidence stands as evidence in chief, (ii) documents in relation to which confidentiality has been lost and which are read out in open court (or documents which the judge is invited to read in open court or outside court, or which it is clear or stated that the judge has read), (iii) skeleton arguments or written submissions, and (iv) any specific documents which it is necessary for a non-party to inspect in order to meet the principle of open justice.
When the court is considering whether and how to exercise its discretion to grant permission for a non-party to obtain copies of court documents, the court has to balance the reasons for seeking copies of the documents against the party to the proceedings’ private interest in preserving their confidentiality. Therefore, if a party has legitimate concerns about sensitive material, they should seek legal advice about protecting this material before it is filed at court or referred to at an open hearing.
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