This post explains how a civil case about harm caused by asbestos can have implications for transparency relevant to family courts.

Those interested in reading further can see the full judgment here Cape Intermediate Holdings Ltd v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, and a press summary here.

Cape Holdings manufactured asbestos. They were the defendants in the case, which appears to have been some sort of personal injury claim. We don’t have the details because they settled the case, but only after the trial had already taken place (the judgment hadn’t yet been delivered). However, the case still made its way to the Supreme Court because of an argument about access to the documents in the case made by a group called Asbestos Victims Support Group Forum UK, who said that the documents might hold important information about the asbestos issues. Whilst we don’t know the basis of settlement or what took place at trial, the timing of the settlement and the fact that Cape resisted disclosure of the documents all the way to the Supreme Court suggests they thought it was pretty important that the Forum didn’t get hold of the documents in question and that the information in the documents didn’t reach the public domain.

A consequence of settling before judgment is that a potentially damning judgment setting out what was in the documents is not been delivered or published. Inevitably, the pursuit (and loss) of a case regarding disclosure of (presumably) commercially sensitive or reputationally damaging material all the way to the Supreme Court is going to produce something of a Streisand Effect.

The decision of the Supreme Court is directly concerned with the rules applicable in civil cases, specifically Civil Procedure Rule 5.4C, which says that someone who is not a party may

obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person.

The issue was which documents were covered by this and how things should work in practice. In addition, the court considered whether the court has a wider power apart from the one contained in the rules of court (that is, a power under its ‘inherent jurisdiction’ at common law) to order some or all of the disclosure.

It is important to note that the Civil Procedure Rules don’t apply to family cases (apart from those sorts of family cases which aren’t technically family cases such as cohabitant disputes about property ownership). The equivalent rules in family cases (the Family Procedure Rules) are different. Rule 29.12 FPR says that:

…no document or copy of a document filed or lodged in the court office shall be open to inspection by any person without the permission of the court, and no copy of any such document or copy shall be taken by, or issued to, any person without such permission. *

*there are some limited exceptions to this rule particularly in divorce cases but this post is already long so we won’t go into that much detail here.

The fact that family and civil cases operate under distinct sets of rules doesn’t mean that the case is of no relevance when thinking about transparency in the family court though, because family cases also sometimes involve the inherent jurisdiction, and the judgment touches on some broader issues of principle.

At the end of the trial the Victims Forum swooped in to say that, even though the case had settled, they wanted sight of the documents. They weren’t parties to the case, but used rule 5.4C to seek ‘all documents used at or disclosed for the trial, including trial bundles and transcripts’. They were granted it – but the order was appealed.

When the Court of Appeal looked at it they disagreed with the original judge. They ordered that disclosure should be limited to :

• statements of case held by the court pursuant (to be provided by the court under Rule 5.4C);
• witness statements, expert reports and written submissions (to be provided by Cape).

In addition the Court of Appeal ordered that the application for further disclosure should be looked at by another judge at another trial, to decide whether any other documents had lost confidentiality when they had been read out in court or by the judge (in the original settled trial), or whether inspection by the Victims Forum was necessary to meet the principle of open justice.

But Cape weren’t having that. They appealed again to the Supreme Court. In fairness to Cape, the Supreme Court must have thought it was also a pretty important issue because they don’t grant permission to hear a second appeal unless there is a point of public interest. On appeal, Cape said the disclosure ordered under the rule should just have been the statements of case on the court file (i.e. the initial documents setting out the legal basis of the claim, not the actual evidence), and that the court’s general inherent jurisdiction (a power that doesn’t come from a specific rule) was not very wide and could only be used to permit the Forum to see things like skeleton arguments (again, legal documents, not the original evidence). They also argued (perhaps somewhat ambitiously, with the benefit of hindsight) that the Forum did not have a legitimate interest based on the public interest in open justice in the content of the documents it was seeking.

The Forum weren’t entirely happy with the Court of Appeal’s more restrictive decision, so they appealed too.

The Supreme Court weren’t mad keen on either of the appeals and dismissed them both, leaving in place the orders of the Court of Appeal for statements of case, witness statements, expert reports and written submissions to be provided and adjusting the mechanism for deciding if there was anything else they should also get their hands on. But in dismissing the appeals, they also delivered a very interesting judgment about the principles that should apply whenever someone (most likely a journalist) is asking to see documents relating to a court case.

Key points of relevance to us are :

• ‘The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. They all have inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before them. The extent of any access permitted by the court’s rules is not determinative (except where they contain a valid prohibition).’

The above wording is taken from the press summary. Remember that, as set out above, in places the Family Procedure Rules DO contain a valid prohibition that runs alongside the other rules making most family court hearings private rather than public, and which restrict the communication of information contained in court documents or shared during court hearings.

• The main purposes of the open justice principle are 1) to hold individual courts and judges to account, and 2) to enable the public to understand how the justice system works and why decisions are taken.

Those are very much principles that are in play in family courts, but of course there are particular difficulties reconciling those important aims with the competing need to protect children in such cases.

• The court referred to the modern practice of much more of the argument and evidence in a case being reduced to writing before a hearing, meaning that it is difficult for non-parties to follow what is going on without access to the written material, including documents.

In surveying the previous caselaw on this point, in particular a case called FAI, the Supreme Court say :

…The confidence of the public in the integrity of the judicial process must depend upon having an opportunity to understand the issues. Until recently this had been done in an opening speech, but if the public were deprived of that opportunity by a written opening or submissions which were not read out, it was within the inherent jurisdiction of the court to require that a copy be made available. [para 29]

and they cite Lord Woolf, firstly in his 1996 Access to Justice report :

It is of great importance that the beneficial saving in time and money which it is hoped to bring about by such new procedures should not erode the principle of open justice [para 29]

and subsequently in the Barings case :

As a matter of basic principle the starting point should be that practices adopted by the courts and parties to ensure the efficient resolution of litigation should not be allowed to adversely affect the ability of the public to know what is happening in the course of the proceedings. [para 30]

Whilst the Supreme Court is clear that the power to direct disclosure under the inherent jurisdiction exists ‘provided there was an effective public hearing at which they were deployed‘, the fact that most family court cases do not involve a public hearing does not mean this is irrelevant. The principle of transparency – where consistent with the special private character of family proceedings – still applies. Even in family proceedings, it has been decided that the public justifies permitting the attendance of journalists – and now legal bloggers – and as with any proceedings there is little point in permitting journalists to attending if they cannot understand what is going on (one might validly say that there is little point in allowing them to attend family court hearings given they very often can’t report, but those reporting restrictions are relaxed on a case by case basis where justified – and understanding the case is key to knowing whether an application for permission to report is warranted, and to constructing a successful argument).

The increasing use of written documents (case outlines, skeletons and written submissions) is a phenomenon in family cases as much as civil. Consequently, the issue of access to documents is something which we have observed before in a family court context, in particular in our role as legal bloggers. One of the issues we have raised in our recent response to the President of the Family Division’s draft guidance concerning the relaxation of reporting restrictions in connection with family court hearings, is whether or not there might be scope to consider permitting journalists and legal bloggers access to documents (not necessarily on the basis that they are permitted to publish the contents) in order that they can better understand what on earth is going on during a hearing where everyone is referring to page references and things contained in documents the reporter can’t see (Indeed the former President of the Family Division, Sir James Munby, suggested this as long ago as 2014 in his ‘Next Steps consultation – the proposals weren’t taken forward).

• The Supreme Court thought that the ‘The default position [should be] that the public should be allowed access, not only to the parties’ submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing, which are not limited to those the judge has been asked to or has said that he has read‘.
• They also said that the court did have jurisdiction to make the order it did, by using the inherent jurisdiction to support the open justice principle, and it could have made a wider order if it were right to do so – but under the inherent jurisdiction rather than rule 5.4C. Importantly for our purposes, the inherent jurisdiction can be exercised in the Family Court (although it can’t be used to trample on the specifics of the Family Procedure Rules themselves).

The Supreme Court says :

There can be no doubt at all that the court rules are not exhaustive of the circumstances in which non-parties may be given access to court documents. They are a minimum and of course it is for a person seeking to persuade the court to allow access outside the rules to show a good case for doing so. However, case after case has recognised that the guiding principle is the need for justice to be done in the open and that courts at all levels have an inherent jurisdiction to allow access in accordance with that principle. Furthermore, the open justice principle is applicable throughout the United Kingdom, even though the court rules may be different [para 34].

The court goes on to confirm that these principles apply across the board and to all sorts of cases [para 41] :

The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question. The extent of any access permitted by the court’s rules is not determinative (save to the extent that they may contain a valid prohibition). It is not correct to talk in terms of limits to the court’s jurisdiction when what is in fact in question is how that jurisdiction should be exercised in the particular case.

• However, the Supreme Court were clear that none of this principle means that a non-party has a right of access to documents (except where specifically in the rules), and a non-party who wants access to documents must explain why she seeks it and how granting access will advance the open justice principle (even in public proceedings).

That is to say, that the person applying has to justify the disclosure. The Supreme Court explains that the court should carry out a fact-specific balancing exercise to take account of any countervailing principles, such as the need to protect (for our purposes) privacy interests or commercial confidentiality. They also said that :

There may be very good reasons for denying access. The most obvious ones are …the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality [para 46].

• Importantly the Supreme Court makes clear that the practicalities and proportionality of granting the request will also be relevant, especially when proceedings are over:

It is highly desirable that the application is made during the trial when the material is still readily available, the parties are before the court and the trial judge is in day to day control of the court process. The non-party who seeks access will be expected to pay the reasonable costs of granting that access. People who seek access after the proceedings are over may find that it is not practicable to provide the material because the court will probably not have retained it and the parties may not have done so. Even if they have, the burdens placed on the parties in identifying and retrieving the material may be out of all proportion to benefits to the open justice principle, and the burden placed upon the trial judge in deciding what disclosure should be made may have become much harder, or more time-consuming, to discharge. On the other hand, increasing digitisation of court materials may eventually make this easier. In short, non-parties should not seek access unless they can show a good reason why this will advance the open justice principle, that there are no countervailing principles of the sort outlined earlier, which may be stronger after the proceedings have come to an end, and that granting the request will not be impracticable or disproportionate [para 47].

This is potentially important when thinking about applications by journalists in family court cases. Now that many bundles are digitised, retrieval and provision of documents maybe less cumbersome, but the practical reality is that in the rare cases where an application for disclosure of documents is made, that may well be after the conclusion of proceedings, precisely because the restrictions on publicity associated with a case about a child mean that journalists arrive late to the party and become interested at the point when it is clear (or where it seems to be clear) that some sort of injustice has been perpetrated or allowed to unfold. This judgment makes such applications more difficult because, unlike in civil litigation, the parties to such cases are usually only represented through legal aid, which falls away the moment that the proceedings conclude. Even where this sort of satellite issue is tacked onto the end of proceedings or dealt with in discrete additional hearings whilst legal aid certificates are still running, there is always a risk the Legal Aid Agency will cut up rough and attempt not to pay the legal costs arising. I have direct experience of how much more practically difficult it is to deal with such an application where some of the parties are unrepresented and are unlikely to know what to make of or how to respond to such an application.

• The suggestion in the judgment (see above) that the costs burden of such an application should be borne by the applicant is unsurprising, but in practice will have a chilling effect on journalists, and in particular is likely an insurmountable barrier to journalists operating on a freelance basis unless they have a clear commission and backing of a media organisation.

Since you’re here…

We have a small favour to ask! 
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Thanks for reading!

Feature pic © Lucy Reed.