High Court guidance on non-party access to court documents

In the context of the phone hacking litigation, the High Court has considered the principles governing which court documents are publicly available: Various claimants v News Group Newspapers Ltd and another [2012] EWHC 397 (Ch).

Under CPR 5.4C a non-party to proceedings can obtain, without the court's permission, a copy of a statement of case or a judgment or order made in public. Any other document is available only with the court's permission. In this case the judge held that a "statement of case" for these purposes includes only the documents expressly mentioned in the definition at CPR 2.3(1) (namely a claim form, particulars of claim, defence, Part 20 claim, reply to defence, or any further information given in relation to any of them), and amended versions of these documents. A notice to admit and the response to it were not therefore available automatically under the rule.

This contrasts with R (Corner House Research) v The Director of the Serious Fraud Office [2008] EWHC 246, in which the Administrative Court held that an acknowledgment of service and detailed grounds in a judicial review claim were available to non-parties without the court's permission under CPR 5.4C, as the word "defence" in the definition of a statement of case could include the judicial review equivalent of a defence.

Facts

This issue arose in the context of the highly publicised litigation relating to alleged phone hacking by Glenn Mulcaire, the private investigator engaged by the News of the World. A non-party media group applied for access to certain documents that had been referred to in open court at the pre-trial review in the action. The documents in question were amended particulars of claim, a notice to admit, and the response to the notice to admit. Copies were provided in redacted form, excluding passages which the defendants objected to providing. The question was whether unredacted copies should be disclosed. Mr Mulcaire objected on the grounds that reporting of the passages in question would create a substantial risk of impeding or prejudicing the course of justice in the further criminal proceedings that he may face.

Decision

The court distinguished between the amended particulars of claim, on the one hand, and the notice to admit and response on the other. The amended particulars were clearly a "statement of case" for the purposes of CPR 5.4C, as that term must have been intended to encompass both the documents mentioned in the definition and subsequent amendments to them. The notice to admit and response were not statements of case because those documents were not expressly referred to in the definition. The judge accepted that they had the same objective and purpose as a statement of case, namely to define and confine the issues. However, the wording of the rule made it "reasonably clear that the only documents to be provided automatically are those expressly mentioned".

Since the amended particulars were a "statement of case", there was a presumption that this document should be available to non-parties in unredacted form. However, the court had a discretion to restrict access under CPR 5.4C(4) by, inter alia, ordering that only a redacted version would be provided. A party's motivation for seeking access to the statement of case was not relevant, unless it was sought for some improper purpose (which was not the case here).

In contrast, there was no presumption in favour of making the notice to admit and response available, as they were not statements of case, and so the burden of proof was reversed. Under the principle of open justice, the court would generally lean in favour of allowing disclosure of documents that had been read out in open court or read by the judge in the course of the decision-making process, but other factors also needed to be taken into account including why the documents were sought and the use to which they would be put. Here the purpose for which the documents were sought (namely to publish material about the litigation, which had attracted widespread public interest and attention) was entirely legitimate.

The contention that disclosure would jeopardise a fair trial was of great importance in the exercise of the court's discretion in relation to all three documents. However, the court was not persuaded that disclosure would give rise to a substantial risk of prejudice, save in relation to the details of Mr Mulcaire's alleged modus operandi which the court said could have an adverse impact on any trial. Accordingly, the court ordered unredacted copies to be provided, save that those details as well as the names of individual journalists and executives should remain redacted.

Comment

This decision is of interest for its approach to the question of what amounts to a statement of case and is therefore publicly available under CPR 5.4C without the court's permission. Here the court takes a strict approach, finding that the rule is limited to the documents expressly mentioned in the definition and amended versions of those documents. The judge commented, "It would have been easy enough for the Rules Committee to include some general words such as 'and other like documents' had it meant so to provide." It appears that the judge was not referred to the decision in Corner House, where the Administrative Court took a purposive approach in construing the definition to include the judicial review equivalent of a defence.

Following the Corner House decision, the Rules Committee was asked by the Ministry of Justice to clarify the categories of documents which fall within the scope of CPR 5.4C. A sub-committee was appointed in March 2008 to consider further what court documents should be available. We understand that the sub-committee recommended that the rules should be amended to make it clear that acknowledgments of service in judicial review proceedings fell within the rule, and that notices of appeal should also be included. However, to date the rule has not been re-visited.

Given the conflicting approaches at first instance, unless and until the issue is clarified by the Rules Committee, there remains some uncertainty as to the precise categories of documents that are available automatically to non-parties under CPR 5.4C. If in doubt as to whether a particular document falls within the rule, parties should consider applying for an order to restrict access in an appropriate case.