The right to secure disclosure to a third party of documents produced and kept by the court for the purposes of litigation is limited. The specialist commercial lawyers at Bahamas law firm ParrisWhittaker are experienced in advising clients on disclosure issues and securing disclosure where required.
The latest1 in a series of rulings on this key issue has been handed down by the UK’s High Court in relation to the extent to which the court can order disclosure of documents held by the court; and a claimant’s entitlement to such disclosure.
The background
A victims support group, a non-party to proceedings, had applied under the Civil Court Rules of England and Wales (CPR) to get access to “voluminous documentation” relating to large-scale personal injury litigation. This include ‘records of the court’.
The support group wanted access to the information concerning the dangers of asbestos, research and other relevant information to help potential litigants in future asbestos-related injury claims. There were also concerns that if the documents in question were destroyed, vital information would be lost for ever.
Earlier decisions
The Supreme Court had agreed with the earlier decision of the Court of Appeal allowing the group access to documents. It said ‘records of the court’ means documents and records retained by the court for its own purposes, not every document generated and kept at court. Further, court records did not exclude all documents other than the statements of case.
The SC also ruled that though the courts have an ‘inherent jurisdiction’ to also allow access on the basis of the principle of open justice – the applicant does not have the right to be granted it. The applicant must explain their reasons for seeking access together with how such access would advance the principle of open justice, such as reasons of national security and the protection of the vulnerable. The court will balance those reasons against, for example, the need to keep the information confidential.
Other documents
The latest ruling concerned the issue of whether a copy of any other document placed before the judge and referred to in the course of the trial should also be supplied to the group.
The High Court ruled that applicants must convey how far access to documents sought would actually ‘advance’ the principle of open justice – not just accord with it. In this case, the court took the view that the applicant was not motivated by seeking to advance the open justice principle, rather it wanted the documents for the purposes of other litigation.
Effectively, it was applying for third-party disclosure in relation to other proceedings but “seeking to do so without regard to the constraints to which a genuine disclosure application would be subject”.
The court made very clear that its inherent jurisdiction should not be used to get around the correct channels and procedures, such as applications for a Norwich Pharmacal order and procedures under the provisions of the CPR.
It is vital that an applicant seeking disclosure of documents, whether or not a party to any proceedings to which the documents relate, makes their application in the correct way. Specialist legal advice from lawyers experienced in disclosure orders, including Norwich Pharmacal orders must be taken before taking any further steps.
How can we help?
We advise and represent clients requiring access to documents whether or not relating to legal proceedings. If you require access documents or information belong to someone else, contact the expert commercial lawyers at ParrisWhittaker for strategic advice and representation. 1 Dring v Cape Intermediate Holdings Ltd [2020] EWHC 1873
