English courts are a public forum and that means the court will consider particular documents fall within the public domain. Before, during and after litigation, parties may understandably be concerned about which documents filed with the court are available to the public.
The public’s access to documents is governed by CPR 5 (Court documents). This post tracks the timeline of a case before the English commercial courts, and sets out the relevant accessibility issues parties should remain aware of at each stage.
Upon issue of proceedings the claim will be entered in the register of claims. The register is publicly accessible and will set out the following details:
The register covers the vast majority of claims issued in the Business and Property Courts of England and Wales, albeit arbitration claims and certain proceedings within the Insolvency and Companies List may be excluded.
Where a Claim Form has been issued but has not yet been served, it will not be available to the public from the court record.
Once the Claim Form has been served, it remains unavailable to the public until:
Where there is more than one defendant, the requirement is for either (i) all defendants to have filed an Acknowledgment of Service or a Defence; or (ii) for at least one defendant to have filed an Acknowledgment of Service or a Defence and for the court to have given permission for the public to access the document.
No. While the general position is that upon application by the public, the court may permit the public access to copies of documents, CPR 5.4C(2) provides that
“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 inclusion of the words “any other document” excludes Claim Forms (and Particulars of Claim) from this rule. Consequently, the public cannot request permission to access a Claim Form.
Once the defendant has filed either an Acknowledgment of Service or a Defence, the Claim Form is publicly accessible, without the need for the public to seek the court’s permission.
It is possible for non-parties to obtain copies of other Statements of Case from Court record. This includes the Particulars of Claim, Defence, Reply and responses to certain requests for information.
Statements of Case only become available once one of the following events has occurred:
These conditions are imposed to ensure that the public does not become aware of the details of proceedings before the defendant. Until one of these conditions have been met, the Statements of Case remain 'private'.
Any document ‘served with' or 'attached to' a Statement of Case is not a public document. For example, if an underlying contract is annexed to Particulars of Claim the contract will not be available to non-parties.
Witness Statements that stand as evidence-in-chief are open available to the public during the course of a trial ( CPR 32.13 ).
A Witness Statement that is read, referred to at trial or included in the trial bundle becomes available for inspection to non-parties for the duration of the trial only. An approach to the Trial Judge should be made for this.
At any other time, permission of the court is required pursuant to CPR 5.4C(2) to obtain a copy of/inspect a Witness Statement.
There is scope for documents disclosed between parties, but not filed at court, to fall within the public domain once read or referred to at a hearing in public. However these documents rarely form part of the court record under CPR 5, and these types of documents are usually returned to the parties after any hearing.
However, if there is a belief that such a document has been filed at court then it is open to the public to make an application pursuant to CPR 5.4C(2) for permission to obtain a copy.
Expert reports and skeleton arguments are not automatically available to the public as matter of course. However, the public may make an application under CPR 5.4C(2) for access.
In Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38 , the Supreme Court found that in determining such application, the court would need to balance the principle of open justice against any the interest of others and the risk of harm:
“There may be very good reasons for denying access. The most obvious ones are national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality. In civil cases, a party may be compelled to disclose documents to the other side which remain confidential unless and until they are deployed for the purpose of the proceedings. But even then there may be good reasons for preserving their confidentiality, for example, in a patent case.”
Consequently, if a party is approached by non-parties for copies of its Skeleton Argument (this could be by way of a written request or perhaps verbally in court) often a party is willing to release a copy. The content of the Skeleton Argument is referred to throughout a hearing (especially at trial) and there may well be no objection to a request for a copy.
Any Judgment or Order made 'in public' is a public document and automatically available to the public.
The general rule is that all hearings are in public, subject to the court’s discretion to order a hearing to be held in private. The conditions of CPR 5.4C(3) apply to Judgments and Orders made in public.
This also applies to Consent Orders which are usually dealt with by the Court as ‘paper applications’. Therefore even if there is no public hearing, a consent order will be deemed to have been made ‘in public’ unless the consent order is marked ‘In Private’ and reasons are provided to the court as to why such order should be made this way.
The supply of documents to a non-party from Court records is governed by CPR 5.4C. Generally speaking Statements of Case and Judgments and Orders that are a made ‘in public’ are public documents and are available from court record. With regard to other documents different provisions apply.
This post was prepared by NRF London’s Court Manager, Nigel Fisher.