The High Court's decision in Dring v Cape has set out a new balancing test for third party access to documents disclosed during litigation. The new approach should provide some comfort to defendants that are subject to extensive disclosure.
Background
On 16 July 2020, Mr Justice Picken handed down his decision in Graham Dring (on behalf of the Asbestos Victims Support Group Forum UK) v Cape Intermediate Holdings Limited. As Picken J noted, the case had an interesting life. The prelude was two claims brought against Cape Intermediate Holdings Ltd ("Cape") by insurers who had written policies for employers that had paid damages to former employees suffering from mesothelioma. Those claims against Cape settled, but not before a six week trial in the High Court and extensive disclosure. This case was an application by the Asbestos Victims Support Group Forum UK ("the Forum") for third party access to the documents revealed during disclosure in those earlier proceedings. The matter eventually reached the Supreme Court. Baroness Hale's judgment clarified the principles that applied to third party applications for the "records of the court". On the facts, she upheld the Court of Appeal's order that the statements of case, witness statements, expert reports and written submissions in the earlier litigation should be provided to the Forum. She also ordered that the application should be relisted before Picken J to determine whether any other documents should be provided, which led to this decision.
The High Court's decision
On remittal to the High Court, the Forum requested access to the documents that had been read out in court during the earlier proceedings, which were known as Bundle C. Picken J considered this in light of his interpretation of Baroness Hale's judgment in the Supreme Court. Picken J found that the old "legitimate interest" approach to third party applications for court records no longer applied. Instead, the matter turned on whether the application would advance the principle of open justice. This was not a free-standing test but a sliding scale of analysis depending on a range of factors. Accordingly, a third party seeking documents for a collateral purpose, such as future litigation, would not be prevented outright from making an application. Nonetheless, such concerns would weigh less heavily than, for example, a newspaper trying to understand the case. Applying this balancing test, Mr Justice Picken denied the Forum's application for access to additional documents. He found that the application did nothing to advance the open justice principle. Moreover, unlike in previous cases involving media companies, there was no evidence that the Forum needed the Bundle C documents to understand the earlier litigation. This was particularly the case given that the Forum already had access to the statements of case, witness statements and written submissions. Picken J concluded that the application was for a purpose "which goes further than is legitimate" and criticised it as an attempt to use the Court's machinery for "laundering" documents into the public domain as part of a litigation strategy.
Comment
The decision in Dring v Cape should provide some comfort to defendants that are subject to extensive disclosure during litigation. Picken J's application of a balancing test and particularly his comments about "laundering" documents into the public domain as part of litigation strategy are likely to restrict the ability of third parties to obtain documents disclosed during proceedings. If the case is clear enough from the statements of case, written statements and witness statements then speculative applications are unlikely to succeed, particularly when they are made by third parties motivated by the prospect of future litigation. Alternatively, applications by media organisations who can establish that they need the documents to understand the nature of the case may be more likely to meet with success.
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