Should non-parties’ access to court documents be expanded?

Related Sector: Expert Witness

A consultation is currently underway on whether documents that have been referred to in court – including experts’ reports – should be made available to non-parties. Bond Solon’s lead expert witness trainer Nicholas Deal outlines the Civil Procedure Rules Committee’s proposal, and the possible implications for expert witnesses.

 

Open Justice: Cape v Dring (2019) and the expansion of CPR5.4C

The Civil Procedure Rules Committee (“the CPRC”) is re-considering CPR5.4C (Access to Court Documents by Non-Parties) following a ruling in the Supreme Court case of Cape Intermediate Holdings Inc v Dring [2019] UKSC 38, in which the Justices urged the CPRC to review the Rule in the light of the principle of open justice – noting that the Court should be able to grant non-party access to a wider range of documents, including those merely referred to during the proceedings, even if the judge hadn’t read them.

Currently, under CPR5.4C, anyone who is not a party to a court case can apply to the court for permission to have access to documents once they have been referenced in open court. These documents include witness statements and experts’ reports.

The proposed amendment would allow a non-party to obtain the following from the court records without the permission of the court:

-       Court judgements or orders (available as of right).

-       Claim forms.

-       Statements of case (available on application).

-       Skeleton arguments (obtainable before the hearing).

-       Witness statements and affidavits (available when the witness is called).

-       Experts’ reports, except for medical reports or if a rule or practice direction provides otherwise. (Available when the statement or report is presented in written form in court).

 

Onus of non-disclosure would fall on the party

The key change is that those documents would be obtainable unless a contrary order is made on application by a party who does not want them to be disclosed.

The burden would therefore be on the party to show why the report should not be disclosed rather than on the non-party to show why it should.

For non-medicolegal expert witnesses, this will increase the scrutiny to which they would be subjected -- ie, beyond the parties in the case to anyone who wishes to follow the proceedings in court, whether that be the public or the press.

There is no apparent limitation period on when documents can be requested so it’s possible, as and when the new rule comes into force, for a party in a case in future to obtain a copy of an expert’s report from a previous case, in which that party was not involved, to see if there is something which they can use against the author of that report.

 

Take part in the consultation

The consultation period closes on 8^th April 2024. To take part in the consultation, follow the link here. The link contains details of the proposed changes and an email address through which to contact the CPRC.