Right to access court documents by a non-party

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The case related to an application for permission to obtain copies of documents relied upon in a series of claims for judicial review. The unsuccessful claims were brought by several tobacco companies against the government’s plans to regulate the packaging of tobacco products.

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.

Following the appeal a representative of the Campaign for Tobacco Free Kids (a US-based non-governmental organisation) (“CTFK”) then sought disclosure of certain documents that were referred to in the pleadings of the original matter. An intervener, Action on Smoking and Health supported CTFK’s application.

The grounds of the application were that such documents sought (expert reports, witness statements and various letters) would aid the understanding of the legal and factual issues surrounding tobacco packaging issues.

The defendant to the application, the Secretary of State for Health, objected to the disclosure of the documents on the basis that they were outside the scope of CPR 5.4C(2) and the documents requested were not part of the Court records.

But Lord Justice Green disagreed.

Green LJ in deciding to grant the application, therefore allowing the documents into the public domain, noted his “inherent jurisdiction” to order disclosure, based on the principle of open justice, unless there was a compelling reason otherwise. He stressed the importance of “transparent justice” and said that, in cases such as this, “the power should be exercised presumptively in favour of disclosure.”

Green LJ’s ruling endorses the dicta in the case 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 entering litigation should be aware that any documents adduced to the Court may become public knowledge and parties concerned about privacy in litigation should seek legal advice.