Non-party access to witness statements and skeleton arguments

Two recent cases have considered the circumstances in which non-parties can gain access to certain court documents.

Witness statements: In British Arab Commercial Bank and others v Algosaibi Trading Services Ltd and others [2011] EWHC 1817, the Commercial Court allowed a non-party's application for access to witness statements, even though the witnesses were never called to give evidence because the defendants admitted liability several days into the trial. The exhibits to the statements were however not provided.

Under the applicable rules, a witness statement which stands as evidence in chief is open to inspection during the trial, unless the court directs otherwise (CPR 32.13). There is a "technical point", as the judge in this case described it, that until a witness is called to give evidence, the statement does not stand as evidence in chief and therefore CPR 32.13 does not apply.

The judge's decision to allow the non-party's application was clearly influenced by the fact that, before liability was admitted, the judge had raised the non-party's request informally with the parties and none of them had raised any objection. Accordingly, the judge said, the parties "sold the pass" on the witness statements at trial. He suggests, however, that in a case where it is anticipated that the witness will give evidence (i.e. there are no indications that settlement is likely) the court would have an inherent jurisdiction to say it is appropriate that the non-party should have the witness statements before the witness gives evidence, so that they do not have to be produced on a piecemeal basis.

If this approach is adopted in other cases, it may be difficult to resist non-party access to witness statements even before the witness is called. It does seem however that exhibits to witness statements can be withheld.

Skeleton arguments: In R (Davies, James and Gaines-Cooper) v HMRC [2010] EWCA Civ 83, the Court of Appeal allowed a non-party's application for access to HMRC's skeleton argument. The application was made by a barrister on the basis that sight of the skeleton would assist him to give better advice to clients and in preparing the next edition of a legal text of which he is the author.

CPR 5.4C provides that a non-party can obtain from the records of the court, with the court's permission, a copy of "any other document" filed by a party (i.e. other than a statement of case or a judgment or order made in public, which are available without the court's permission). Ward LJ granted the application, stating that since skeletons are part of the argument and are referred to in open court and are available to law reporters, he could see no reason for withholding them.