The case of R (on the application of British American Tobacco (UK) Limited) v Secretary of State for Health discussed CPR 5.4C(2) and the case law surrounding this discrete area of practice.
CPR 5.4C(2) states:
“A non-party may, if the court gives permission, 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 case related to an application for release of court papers arising out of judicial review proceedings brought by several tobacco companies in relation to tobacco packaging regulation.
Judgment in the original matter was given on 19 May 2015 and appeals by the tobacco industry were subsequently rejected by the Court of Appeal. The tobacco companies did apply for permission to appeal to the Supreme Court but this was refused.
A US-based non-governmental organisation, Campaign for Tobacco Free Kids (CTFK), which campaigns for a reduction in tobacco use made the application. An intervener, Action on Smoking and Health (ASH) supported CTFK’s application. Copies of pleadings in the matter under CPR 5.4C(1) had already been obtained by CTFK. The application before the court related to documents that were referred to in the pleadings of the original matter.
The documents sought were expert reports, witness statements and various letters. The grounds of the application were that such documents would help with the understanding of tobacco packaging issues.
The defendant to the application, the Secretary of State for Health, objected to the disclosure of the extra documents on the basis that trial witness and expert statements were outside the scope of CPR 5.5C(2).
Green LJ heard the application and considered the issues in detail. He stated that CPR 5.4C(2) conferred a discretion or power on the court to order production of other documents filed by a party and, as the application could be made without notice, the court could decide the matter upon the basis of an application alone and without seeking submissions from the other parties.
What constitutes “court records”?
In relation to this question, Green LJ considered the case of Cape Intermediate Holdings Limited v Dring which stated:
“Essentially documents kept by the court office as a record of proceedings many of which will be of a formal nature. The principal documents which are likely to fall within that description are those set out in paragraph 4.2A of CPR 5APD.4 together with ‘communication between the court and a party or another person’… In some cases there will be documents held by the court office additional to those listed in paragraph 4.2A of CPR 5APD.4, but they will only be ‘records of the court’ if they are of an analogous nature”.
Further in his judgment, Green LJ quoted from the case of Cape:
“There is no inherent jurisdiction to allow non-parties inspection of:
Trial bundles; documents which have been referred to in skeleton arguments/written submissions, Witness statements, experts’ reports or in open court simply on the basis that they have been referred to.
There is inherent jurisdiction to allow non-parties inspection of:
(1) Witness statements of witnesses including experts whose evidence stands as evidence in chief and which would have been available for inspection during the course of the trial…
(2) Documents in relation to which confidentiality has been lost under CPR 31.22 and which are read out in open court; which the Judge is invited to read in open court; which the Judge is specifically invited to read outside the court or which it is clear or stated that the Judge has read
(3) Skeleton arguments/written submissions or similar advocates’ documents read by the court provided that there is an effective public hearing in which the documents are deployed
(4) Any specific document or documents which it is necessary for a non-party to inspect in order to meet the principle of open justice.”
Green LJ had given all the parties notice of the application and 28 days in which to serve written submissions in response. It is of note that the claimants in the original proceedings, the tobacco companies, did not oppose the application and they did not make any substantive submissions. The Secretary of State, however, made limited submissions on the basis of its construction of the CPR. The Secretary of State argued that the records of the court as defined under CPR 5.4C(2) did not include trial bundles, trial witness statements or trial expert reports.
Green LJ stated that he had an inherent jurisdiction to order disclosure of the documents in question. He found it material that the documents sought did not technically fall within the scope of the CPR. He relied on the principle of open justice and stated:
“The starting point of all true justice is whether it should be done and be seen to be done in public. It is difficult to understate the importance of transparent justice. It is fundamental to democracy it is a powerful discipline upon Judges and the parties all that is said and done in a court is and should prima facie be subject to public scrutiny.”
Green LJ ordered that the documents applied for by CTSK should be disclosed, therefore allowing them into the public domain.
Note to practitioners
Green LJ’s ruling endorses the dicta in Cape Intermediate Holdings Limited v Dring which gives a clear guide as to what a court should consider when disclosing court documents to third parties.
Parties to litigation should be made aware at the time of entering into litigation that any documents adduced to the court may become public knowledge. If there is any question about confidentiality an appropriate application should be made to the court as soon as practicable.