The Supreme Court will reveal on Monday whether third parties should have access to court documents for litigation where they were not directly involved.
Experts suggest the outcome of Cape Intermediate Holdings Ltd v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK) will have significant repercussions for the principle of open justice and court discretion about access to documents.
The respondent in the appeal, a group providing support to those who suffer from asbestos-related diseases, applied for copies of documents used in two sets of proceedings involving Cape. These cases settled after trial but before judgment.
Master McCloud allowed the group’s application, and Mr Justice Martin Spencer granted Cape permission to appeal, ordering that the appeal be heard by the Court of Appeal.
That court allowed Cape’s appeal, holding that for the purposes of Civil Procedure Rule 5.4C(2), ‘records of the court’ did not extend to witness statements, expert reports, trial bundles, transcripts or written submissions. This is being challenged by the Forum.
But judges also held the court has inherent jurisdiction to allow non-parties inspection of witness statements, expert reports and documents read out in open court or which the judge was invited to read in or outside of court. This part of the decision is being challenged by Cape and forms the subject of the appeal to the Supreme Court.
The Supreme Court says in its explanation of the case that justices will decide what powers the court holds pursuant to the CPR or its inherent jurisdiction, to allow access to documents used in litigation. Judgment will be handed down on Monday.
Writing after the Court of Appeal judgment last year, Nick Pargeter, partner at national insurance law firm BLM, said the decision would circumscribe the scope of ‘what may otherwise have become commonplace applications’ by claimant firms to inspect documents in compromised litigation.