In the recent decision in the matter of British American Tobacco UK Ltd & Ors v Secretary of State for Health (BAT), the English Court confirmed its inherent jurisdiction to order disclosure of documents to third parties, even if they technically fall outside the scope of the court rules. It re-affirmed the approach taken in Cape and clarified that a non-party’s reasons for seeking documents are not determinative of its application.
General Rule Regarding Non-Party Access to Documents
The general rule is that a non-party may obtain from the court records a copy of (i) a statement of case (but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it) and (ii) a judgment or order given or made in public (whether made at a hearing or without a hearing).1
Rule 5.4C(2) of the Civil Procedure Rules (CPR) confers a discretion on the court to order the production of other documents from the “court records” if the court gives permission. CPR 5.4C is viewed by the English courts as an expression of a broader common law principle of open justice.2
CTFK’s Application for Documents Deployed in BAT
The Campaign for Tobacco-Free Kids (CTFK), an NGO based in Washington, D.C. which promotes tobacco control measures and legislation worldwide, made an application for disclosure of documents which had been deployed by parties to an application for judicial review (the JR). In the underlying JR tobacco companies sought to challenge as unlawful under international law, EU law and domestic common law the Standardised Packaging of Tobacco Products Regulations 2015. The volume of documentary material deployed in the JR and which was included in the trial bundle was vast. To illustrate, the tobacco companies relied on 25 expert reports and the Secretary of State relied on five expert reports. In order to make the hearing manageable, it was agreed that the court would undertake substantial pre-reading by way of preparation.
CTFK subsequently sought copies of documents referred to in Statement of Facts and Grounds and Detailed Grounds of Resistance, including expert reports, witness statements, and letters from the World Health Organisation to the Under Secretary for Public Health. CTFK argued that the analysis and conclusions in the Judgment have significant wider implications for the adoption and implementation of standardised packing of tobacco products in the United States and around the world where CTFK works with governments and other NGOs (including within the EU) and that the disclosure of the documents would aid the understanding of the legal and factual issues surrounding the question of standardised packaging and would promote debate.
CTFK’s application was opposed by the Secretary of State (but not the Tobacco companies) who contended that per the Court of Appeal’s decision in Cape, the “records of the court” did not include trial bundles, witness statements or expert reports. CTFK’s application was supported by Action on Smoking and Health (ASH) (another NGO and intervener in the JR) who made submissions to the court about the potential future relevance of the material sought by CTFK.
The Decision
Lord Justice Green determined that he had an inherent jurisdiction to order disclosure of the documents sought by CTFK and that it was immaterial that the documents sought might, technically, not all fall within the scope of the CPR. He rejected the notion that the reasons why a person seeks access to documents should be determinative and noted that with only very limited exceptions, any member of the public is entitled to walk unhindered into a court to witness proceedings, without having to explain and it is hard to see why such a person making a request for documents which assists an understanding of those proceedings should have to justify the request.
To the extent that the reasons were germane, the Court held that in this case they were compelling and that there were no good reasons to withhold disclosure from CTFK. The Court noted the following:
• the documents were all referred to in pleadings, evidence and submissions before the Court and they were all read and taken into consideration by him in preparing the Judgment;
• the documents raised issues relating to public safety and health;
• the issue of standardised packing is an issue of broad continuing importance to the international community;
• the evidence, or material similar to it, is still being advanced by the tobacco industry in the UK and in other jurisdictions, according to ASH;
• the conclusions arrived at in the Judgment about this evidence are better understood with the actual evidence itself being available in the public domain;
• wider transparency might thereby assist other interested persons, countries and courts to form their own views about the merits or otherwise of the competing arguments;
• there were no grounds cited at the time of the litigation to justify preserving the secrecy of the documents in issue and none arose at the time of the decision; and
• it was not relevant that the litigation was at an end.
Take Away
This case confirms the English courts’ view as to the importance of the principle of open justice and their willingness to exercise their inherent jurisdiction as to how the principle is applied. The Court’s comments as to the relevance of an applicant’s reasons for seeking documents is to be welcomed and reinforces the fact that applications under CPR5.4C(2) can be a powerful tool for (potential) litigants.
1) CPR 5.4C
2) Guardian News and Media Ltd v City of Westminster Magistrates Court [2012] EWCA Civ 420 at para 69.
