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Cape - it gives you the fear

30 August 2019

In the recent decision of Cape Intermediate Holdings Ltd -v- Dring (for and on behalf of Asbestos Victim Support Groups Forum UK) [2019] UKSC 38, the Supreme Court has held that parties who have not entered process will be entitled to access written material lodged with the court, making it easier for non-parties to obtain a far wider range of documents than previously.

The unanimous decision which was handed down by Lady Hale determined that not only should the public be allowed access to parties’ submissions and arguments, they should also have a  prima facie right of access to documents lodged and referred to during the hearing, even if not read by the judge.  Lady Hale explained the case was “… in short, about the extent and operation of the principle of open justice.”


Jennifer Stewart,

Senior Associate

Cape Intermediate Holdings Ltd (“Cape”) dealt with the manufacture and supply of asbestos and at first instance were the Defendant in claims brought against them by employers’ insurers. The Asbestos Victim Support Groups Forum UK (“The Forum”) which provides support to those with asbestos related conditions applied for access to the documentation produced at trial, being a core bundle of over 5000 pages of documents provided by disclosure as well as a joint electronic bundle containing all disclosed documentation from each trial. The cases settled after trial, however, before judgement was issued.

Decision at First Instance and Court of Appeal

Following settlement, The Forum sought to rely on Rule 5.4C of the Civil Procedure Rules (CPR) to obtain copies of the trial documentation on the basis that it potentially would assist in future asbestos litigation, for both claimants and defendants. Rule 5.4C(2) provides that a person who is not a party to proceedings may “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 other person” if permission is granted by the Court.  At first instance, the master held that she had jurisdiction either under Rule 5.4C or at common law to grant the orders sought by The Forum, however, an appeal by Cape was upheld by the Court of Appeal which limited the documentation disclosed to the Forum to statements of the case held by the Court pursuant to rule 5.4C(1), and access was not given to documents which appeared in the electronic trial bundle, which included all the parties’ disclosed documents whether or not relied on at trial.

Cape appealed and the Forum cross appealed to the Supreme Court on the basis that any disclosure should have been limited solely to the statements of cases held on the Court file, that the scope of any inherent jurisdiction of the Court was very limited, and that the Forum had no legitimate interest based on the public interest in the content of the documents it was seeking.  The Forum cross appealed on the ground that the Court of Appeal had been wrong to limit the scope of Rule 5.4C.

Decision of the Supreme Court

Both appeals were unanimously dismissed by the Supreme Court and Lady Hale stressed the importance of open justice, going on to explain that default position should be in addition to the public having access to parties’ written submissions and arguments, this should also apply to documents placed before the Court and referred to during the hearing, whether or not read by the Judge. 

It was held. However. by the Court that an applicant did not have an automatic right for access to be granted. Rather, they will be required to “…show a good reason why this will advance the open justice principle, that there are no countervailing principles…which may be stronger after the proceedings have come to an end, and that granting the request will not be impracticable or disproportionate.”  


It still remains for the Court to weigh the principle of open justice against the potential harm in providing documentation to non-parties, although this decision may now make it much easier for non-parties to access wider information than previously was the case. Careful consideration will be required of documentation being disclosed or lodged at trial and its wider implications beyond the individual case concerned.

Contact: Jennifer Stewart, Senior Associate, T: 0141 221 8012


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