What Documents Can Be Disclosed From A Court Case?

Most civil proceedings are held in open public court and copies of judgments are readily available from websites such BAILII. This is in line with the upholding of open justice.

Court documents are dealt with under the Civil Procedure Rules (CPR), part 5.

CPR 5.4B sets out what documents a party to the proceedings can obtain, which include:

1.  the records of the court a copy of any document listed in paragraph 4.2A of Practice Direction 5A.
2. a copy of any other document filed by a party or a communication between the court and a party or another person

CPR 5.4C sets out what documents a non-party to the proceedings can obtain (since 2 October 2006) which include:

• (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)

A ‘statement of case’ would cover the following categories of documents:

• Claim form
• Particulars of claim
• Defence
• Reply
• Reply to defence
• Counterclaim or other additional claim (that is, a Part 20 claim)
• Any further information provided in response to a Part 18 request

Usually if documents formed part of the decision making in a public hearing then access should be provided to those documents as well as the judgment.

Documents outside the scope of CPR5.4C which require a court’s permission for disclosure would include:

• Documents attached to a statement of case (for example, an extract from a contract)
• Witness statements
• Expert reports
• Skeleton arguments
• Notice to admit and response
• Correspondence between the parties and the court

It should also be noted that CPR5.4C does not apply to all courts. For example, it does not apply to the Employment Tribunal and the Supreme Court

The Supreme Court in the case of Cape Intermediate Holdings Ltd v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK) (2019) laid down guidance that the Court should be free to grant access to a wide range of documentation to non-party applicants, including not only parties’ submissions and arguments but also documents placed before the Court and referred to during the hearing, whether or not the judge had read the documents. This arises not only from CPR 5.4C but the inherent jurisdiction of the court and principles of open justice.

The first step would be to conduct a search to find the details of the pending case. Then either a written request (if no permission is required) or an application (if permission is required) will need to be made to the court with the appropriate fee. An application could be made without notice, so the parties may not be aware if a non-party has applied for and obtained copies of documents, although a court may direct that notice be provided.

In a recent case, Hayden v Associated Newspapers Limited and others (2022), the question of whether a party to proceedings could obtain details of the non-party who had obtained documents from the court file was addressed.

Although the court accepted that the form completed by the non-party and submitted to the court to obtain a copy of the order was a communication between the court and another person, it did not find that the document was part of ‘records of the court’. The request once processed under the new electronic filing system was no longer available.

Further, requests for documents from the Court file under CPR 5.4C(1)

• have no bearing on the litigation
• are wholly unconnected to it
• are not required to be kept

The principles of open justice support this conclusion. CPR 5.4C(1) plays an important role in open justice. It declares that, absent the Court ordering some restriction on access, the documents specified in the rule are to be publicly accessible. They are the documents required to be available on the public record to enable the public scrutiny that is an essential feature of open justice. At least in respect of requests for documents that are required to be publicly accessible under CPR 5.4C(1), I can see no basis on which a person requesting copies of the documents can be required to provide a reason why s/he wants them. That is to be contrasted with applications by a non-party for other documents from the records of the Court under CPR 5.4C(2) in respect of which the reason why the relevant document is sought is a relevant factor to be considered by the Court when considering whether to grant access.

On the flip side, a party can apply for an order under CP5.4C(4) to prevent or restrict access to a statement of case to a non-party. This would normally be used if the document contained confidential or commercially sensitive information.

In addition, parties should heed CP31.22 which restricts the use of documents disclosed during court proceedings unless:

• The document has been read to or by the court, or referred to, at a hearing which has been held in public
• The court gives permission
• The party who disclosed the document and the person to whom the document belongs agree

Again a court can make an order restricting or prohibiting the use of a disclosed document under CPR 31.22(2).

Final Words

Parties should consider at an early stage whether to restrict public access given that they may not always been informed when such a request/application has been made by a non-party.

The judge in Hayden echoed the urgency from Cape that there are important questions of principle and practice relating to what records are kept by the Court and access to them in the interests of open justice. Responsibility for this, in England & Wales, lies principally with the Civil Procedure Rules Committee.

If you have any further queries regarding documents being disclosed from a court case, contact our leading Dispute Resolution Solicitors now on 0330 822 3451 or request a call back.