Cape v Dring – Supreme Court Decision
We are pleased to report on the Supreme Court’s recent decision in the case of Cape Intermediate Holdings Limited v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK) [2019] UKSC 38.
The case relates to an appeal made by Cape to the highest court in the land, where they appealed the decision reached by the Court of Appeal to allow a non-party to proceedings, namely the asbestos support group Forum, access to documents filed at court by Cape. Clearly, the company did not wish for non-parties to proceedings to have access to important documentation which could shed light on Cape’s “date of guilty knowledge”, relating to the dangers of being exposed to asbestos dust in the workplace.
Unanimous Decision
The unanimous Supreme Court decision, handed down by Lady Hale at the start of August 2019 is seen in many quarters as a “victory for open justice”.
In the court’s judgement, the default position in relation to access to disclosure documentation is that the public should be allowed access not only to parties’ submissions and arguments, but also to documentation which has been placed before the court, for example, in the form of court bundles, considered at trial. As long as documentation in the bundles was referred to at trial, then a non-party should be granted access to those documents.
Obligation on non-party to explain why documentation is needed
The fact remains, that each non-party wishing to view documentation referred to in legal hearings they are not a party to, has to explain why such access is sought from the court. When considering the request, the court will balance the potential value of the information in advancing the purpose of so-called, “open justice”, as against any risk of harm which could occur, arising from disclosure of the information.
First Instance Decision
At first instance, the support group Forum was allowed access to the trial bundles and other documents used in two sets of proceedings relating to a well-known polluting employer and manufacturer, Cape. Both cases settled after trial but before judgement and the Forum believed that the documentation consisted of valuable information which could assist other asbestos disease sufferers and their families in the future.
Master McCloud heard the case at first instance and did not allow the Forum access to parties’ disclosed documents but access was permitted in respect of skeleton arguments, transcripts and the complete paper trial bundle.
Leapfrogged appeal to the Court of Appeal
In a leapfrog appeal to the Court of Appeal, Cape succeeded in overturning the decision of the lower court with access only being provided to the statements of cases held by the court and the provision of witness statements, expert reports and written submissions only. It was also ordered that the Forum’s application for further disclosure be listed before the trial judge to decide whether any other documents had lost confidentiality and had been read out in court or by the judge, or inspection was necessary to meet the principle of “open justice”.
Highest court in the land decides
Cape appealed and the Forum cross-appealed up to the Supreme Court. Cape argued that the Court of Appeal had been too generous when dealing with the issue of access to documentation in general. The Forum argued that they had been too limited.
Interestingly, the Media Lawyers Association also intervened in the case, arguing that access to court documents was essential to allow the media to play its role as the eyes and ears of the public.
Both appeals were dismissed by the Supreme Court, stressing the importance of open justice. It was held that if the trial judge had forgotten or ignored some important form of information and if access was limited to what the judge had actually read, then “the less conscientious the judge, the less transparent is his or her decision”.
First of all, the purpose of open justice is to secure public scrutiny of the decision making process and, secondly, to allow the public the opportunity to understand the inner workings of the justice system and why certain decisions are taken.
Whilst the court held that a non-party does not have an automatic right of access to be granted, providing good reasoning was provided behind an application for access, it would be possible for access to be granted in accordance with this well-established legal principle.
It was also decided by the higher court that Cape was wrong in arguing that the Court of Appeal did not have jurisdiction to make the order that it had made. The Court of Appeal not only had jurisdiction to make that order but to make a wider order if it were right to do so. This being said, the Forum had also been wrong to argue that the court should have made a wider order under the Civil Procedure Rules. The basis for making a wider order was the inherent jurisdiction of the court in support of open justice and the orders for access for access, already made, would stand.
It is hoped that this decision will open the door to other asbestos disease sufferers and their families gaining access to previously unavailable documentation, which could assist in their own pursuit for justice in their own asbestos claims against Cape.
If you require assistance in pursuing an asbestos claim, please contact us today on our freephone number 0800 038 6767. Alternatively, head over to the ‘Contact Us’ page, complete the form and we will be in touch.