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Non-parties to get more access to court documents

By Michael Cross >>

(23 February 2024)

Proposals to widen non-parties’ access to court documents are prompting concerns among solicitors and expert witnesses, the Gazette has learned. The proposed amendment to the Civil Procedure Rules would allow non-parties in cases to obtain skeleton arguments, witness statements and expert reports.

They would be entitled to skeleton arguments ‘at the start of the hearing for which the skeleton argument was filed’, according to a new draft of CPR 5.4C.

‘Unless the court directs otherwise, it is the responsibility of the party who filed the skeleton argument or relies on the relevant witness’s evidence to provide the copy of the skeleton argument or witness statement,’ the draft concludes.

The proposals follow a report presented to the Civil Procedure Rule Committee by Lord Justice Bean (David Bean KC) in December. It followed the Supreme Court’s judgment in Cape v Dring, which called for more access to documents in the interests of open justice. The committee heard that the purpose of the new rule was to expand the range of documents that may be obtained by non-parties. A consultation closes on 8 April.

While the new rule is likely to be welcomed by media organisations and open justice campaigners, solicitors and expert witnesses will be concerned about several aspects of the regime.

One issue is the extra workload that would be created. While medical reports would be exempted, expert witnesses pointed out that other reports frequently contain confidential medical information and would need to be redacted. ‘You’ll end up having to create two sets of documents,’ one senior civil litigation expert said. 

‘It’s a dramatic change,’ said David Greene, senior partner at Edwin Coe. ‘Parties to proceedings will need to consider carefully whether they will need to make an application to the court to forestall what will be wide disclosure if they do nothing.’

According to the committee’s minutes, it discussed whether a court should be entitled to refuse a request on the basis that it is oppressive, ‘particularly if it is voluminous and made just before a hearing’. However it concluded: ‘It is not easy to provide a drafting solution for this.’

Law Society president Nick Emmerson said: ‘In our response to the Ministry of Justice’s call for evidence on open justice, we explained, at a minimum, that dates, times, court and summary of the proceedings brought should be accessible to non-parties.

‘Our members have suggested there is an argument in favour of publishing skeleton arguments and witness statements in higher court cases. These would need to be decided on a case-by-case basis and the best approach would be for the parties or judge to decide what else, if anything, might help better understand the decision.

‘An increase in the publication of other court records would involve the redaction of certain content and would, therefore, require sufficient resourcing,’ Emmerson said. 

Meanwhile, the Expert Witness Institute is collecting views from members. Simon Berney-Edwards, chief executive, told the Gazette that there may be concerns about experts coming under attack for their reports. ‘We can absolutely see where they’re coming from in promoting open justice,’ Berney-Edwards said of the proposed new rule. ‘But it seems to raise a lot of questions about how this plays out.’

(Courtesy: The Law Society Gazette)