Dring v Cape Intermediate Holdings Ltd

This case has had an interesting life. It has entailed a six-week trial before me in 2017 which resulted in a settlement prior to judgment being finalised. There were then certain hearings before the Master concerning the applicant’s attempts to obtain the documentation which is the subject of the application now before me. This led, in turn, to a hearing before the Court of Appeal and, after that, a hearing before the Supreme Court. That latter hearing resulted in an order that the application be listed before me (or, if not possible, then, another High Court judge), as Lady Hale put it in the Supreme Court’s judgment ([2019] UKSC 38) at [50]:

The background is described in Lady Hale’s judgment at [3] to [13]. There is nothing to be gained from my seeking to reformulate what is stated there. It is, however, probably useful to quote at least parts of Lady Hale’s description in what follows.

At [3] Lady Hale said this:

She, then, went on at [4] to describe the documents position at trial:

Lady Hale next described, at [5], how, after the trial had ended but before judgment was delivered, the PL claims were settled in March 2017 and how the CDL claim was also settled a month later, again before judgment.

She continued at [6]:

Lady Hale, then, stated as follows at [7]:

Lady Hale went on, at [8], to explain that Cape appealed, inter alia, on the grounds that: (1) the Master did not have jurisdiction, either under CPR 5.4C or at common law, to make an order of such a broad scope; (2) to the extent that the Court did have jurisdiction to grant access, she had applied the wrong test to the exercise of her discretion; and (3) in any event, she should have held that the Forum failed to meet the requisite test.

As for that appeal, Lady Hale summarised the position in this way:

When exercising its discretion under CPR rule 5.4C(2) or the inherent jurisdiction, the court had to balance the non-party’s reasons for seeking disclosure against the party’s reasons for wanting to preserve confidentiality. The court would be likely to lean in favour of granting access if the principle of open justice is engaged and the applicant has a legitimate interest in inspecting the documents. If the principle of open justice is not engaged, then the court would be unlikely to grant access unless there were strong grounds for thinking it necessary in the interests of justice to do so (paras 127 and 129).

Accordingly, the court ordered, in summary: (i) that the court should provide the Forum with copies of all statements of case, including requests for further information and answers, apart from those listed in Appendix 1 to the order, so far as they were on the court file and for a fee, pursuant to the right of access granted by CPR rule 5.4C(1); (ii) that Cape should provide the Forum with copies of the witness statements, expert reports and written submissions listed in Appendix 2 to the order; and (iii) that the application be listed before Picken J (or failing him some other High Court Judge) to decide whether any other document sought by the Forum fell within (ii) or (iv) in para 9 above and if so whether Cape should be ordered to provide copies. Copying would be at the Forum’s expense. Cape was permitted to retrieve from the court all the documents and bundles which were not on the court file and the hard drive containing a copy of Bundle D. In making this order, the Court of Appeal proceeded on the basis that clean copies of the documents in question were available.”

Lady Hale, in giving the judgment of the Court, reviewed a number of authorities, including FAI and R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618, explaining at [34] that:

Having identified open justice as the guiding principle and specifically by reference to

She continued at [38]:

Lady Hale, then, at [39], referred to Kennedy v Charity Commission (Secretary of State for Justice intervening) [2014] UKSC 20, [2015] AC 455, describing that as a decision in which the principles laid down in Guardian News and Media were clearly endorsed by Lord Mance, Lord Toulson, Lord Neuberger and Lord Clarke (in the majority) and not doubted by Lord Wilson and Lord Carnwath (in the minority). She, then, noted that the principles were also endorsed by a unanimous Supreme Court in A v British Broadcasting Corpn (Secretary of State for the Home Department intervening) [2014] UKSC 25, [2015] AC 588, in which Lord Reed expressly adopted

In passages which are very important for present purposes and which were the subject of extensive submissions by both Mr Robert Weir QC, on behalf of the Forum, and by Mr Geraint Webb QC, on behalf of Cape, Lady Hale, then, went on to say this at [41]-[47]:

The principal purposes of the open justice principle are two-fold and there may well be others. The first is to enable public scrutiny of the way in which courts decide cases - to hold the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly. In A v British Broadcasting Corpn, Lord Reed reminded us of the comment of Lord Shaw of Dunfermline, in Scott v Scott [1913] AC 417, 475, that the two Acts of the Scottish Parliament passed in 1693 requiring that both civil and criminal cases be heard ‘with open doors’, ‘bore testimony to a determination to secure civil liberties against the judges as well as against the Crown’ (para 24).

But the second goes beyond the policing of individual courts and judges. It is to enable the public to understand how the justice system works and why decisions are taken. For this they have to be in a position to understand the issues and the evidence adduced in support of the parties’ cases. In the olden days, as has often been said, the general practice was that all the argument and the evidence was placed before the court orally. Documents would be read out. The modern practice is quite different. Much more of the argument and evidence is reduced into writing before the hearing takes place. Often, documents are not read out. It is difficult, if not impossible, in many cases, especially complicated civil cases, to know what is going on unless you have access to the written material.

It was held in Guardian News and Media that the default position is that the public should be allowed access, not only to the parties’ written submissions and arguments, but also to the documents which have been placed before the

However, although the court has the power to allow access, the applicant has no right to be granted it (save to the extent that the rules grant such a right). It is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle. In this respect it may well be that the media are better placed than others to demonstrate a good reason for seeking access. But there are others who may be able to show a legitimate interest in doing so. As was said in both Kennedy, at para 113, and A v British Broadcasting Corpn, at para 41, the court has to carry out a fact-specific balancing exercise. On the one hand will be ‘the purpose of the open justice principle and the potential value of the information in question in advancing that purpose’.

On the other hand will be ‘any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others’. 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.

Also relevant must be the practicalities and the proportionality of granting the request. It is highly desirable that the application is made during the trial when the material is still readily available, the parties are before the court and the trial judge is in day to day control of the court process. The non-party who seeks access will be expected to pay the reasonable costs of granting that access. People who seek access after the proceedings are over may find that it is not practicable to provide the material because the court will probably not have retained it and the parties may not have done so. Even if they have, the burdens placed on the parties in identifying and retrieving the material may be out of all proportion to benefits to the open justice principle, and the burden placed upon the trial judge in deciding what disclosure should be made may have become much harder, or more time-consuming, to discharge. On the other hand, increasing digitisation of court materials may eventually make this easier. In short, non-parties should not seek access unless they can show a good reason why this will advance the open justice principle, that there are no countervailing principles of the sort outlined earlier, which may be stronger after the proceedings have come to an end, and that granting the request will not be impracticable or disproportionate.”

Lady Hale, then, turned to the present case, explaining at [49] as follows:

Lady Hale, accordingly, went on at [50] to say this:

The Forum’s application is supported by the same evidence which was before the Master, namely three witness statements by Ms Harminder Bains, a partner in Leigh Day, and a witness statement from Mr Graham Dring, who is the chair of the Forum.

As previously mentioned, the application before the Master (and so the application before me) was an application which sought the supply of documents to a non-party under CPR 5.4C(2). There was no mention in the application itself of the Court’s inherent jurisdiction, although, in the event, this was invoked at the substantive hearing which took place before the Master. No point was taken by Cape, either before me or on any prior occasion, as to the fact that the application itself did not refer to the inherent jurisdiction of the court and only referred to CPR 5.4C(2). I proceed accordingly.

In her first witness statement Ms Bains outlined the background to the application and described the documentation which the Forum sought. Specifically, in paragraph 22 Ms Bains referred to witness statements and experts’ reports, as well as transcripts of evidence and, then, identified this further category:

It will be apparent that the application, therefore, was widely couched, embracing the entirety of Bundle D (the documents disclosed in the proceedings), and so not confined to documents contained in Bundle C (the documents to which reference was made during the course of the trial). Mr Weir QC made clear before me, however, that, following the provision of some of the documents sought by the Forum, the application is now limited to Bundle C documents. Mr Webb QC told me (although Mr Weir QC did not agree every detail) that this bundle consists of approximately 5,000 pages, the Forum having already now received somewhere in the region of 1,716 pages of other documents, amounting to some four lever arch files. Those documents were, indeed, before me on the hearing of the application and include all pleadings (some 231 pages), including Part 18 Requests and Replies, written opening submissions (some 442 pages), witness statements (10 pages), experts’ reports (623 pages) and written closing submissions (409 pages).

In her first witness statement, at paragraph 23, Ms Bains went on to give as “reasons” why “the documents will be valuable” the following:

It helps for background to detail the research that the asbestos industry were carrying out and the relationship between the large asbestos manufacturing companies, both in the UK and overseas. It also helps to understand the relationship they had with other stakeholders, such as the Factory Inspectorate, the British Occupational Hygiene Society, Asbestosis Research Council, Asbestos Information Committee and any organisations undertaking research on behalf of the asbestos industry in relation to asbestos;

It helps to know the dates that various asbestos materials were manufactured, there relative costs and when alternative materials were developed, their costs and any reasons why those asbestos-free materials were not developed and/or marketed earlier;

It helps to know the quantities of asbestos materials which were manufactured and, where asbestos-free alternatives were made, where and how they were made …;

It helps to understand what steps the manufacturers were taking to carry out research, who did that research, and the arrangements for the publication of the research – i.e. was it checked by the manufacturers and amended before it was published (and what organisation did the research);

It helps to understand what discussions were taking place behind the scenes with other stakeholders, including the Factory Inspectorate and HSE - what research did the Asbestos Research Council (‘ARC’) make available to them to determine the numerical standards and other guidance which published dust concentrations TDN13 and TDN42 for example, were the figures supplied by ARC and, if so, were they the only figures.

Were any discussions taking place in Whitehall with government about the loss of jobs within the industry, who were they taking place with and what was the outcome of those discussions;

How did information in relation to crocidolite being the main cause of mesothelioma become published? What did they know about amosite for example. How did the ARC justify publishing information that the risk of mesothelioma was limited to crocidolite? ix. What influence went on with Her Majesty’s Factory Inspectorate (‘HMFI’) and HSE in relation to setting numerical limits and standards. How did HMFI come to adopt the British Occupational Hygiene Society (‘BOHS’) standard, how did the BOHS get published? What risks did that consider?

What did Cape know about ‘safe’ levels of asbestos in the 1960s? Were Cape carrying out research before that time in the UK or overseas and what were the findings of that research?

What did Directors of Cape know about the dangers of asbestos?

What did the expert witnesses say in their reports? This could narrow issues and save costs in future cases (i.e. prevent need for engineering evidence on similar cases)

Were the limits and standards based on safe levels of exposure levels which the industry thought were achievable with very little cost in terms of engineering controls? Could the industry put profit before safety and did HMFI let them?

The documents may help to resolve the issue of limits and standards and availability of sampling in the 1960s. This is an area of significant disagreement between the experts.”

Ms Bains, then, concluded in paragraph 24 by saying this:

In his witness statement, Mr Dring gave certain details concerning the role played by the Forum. As he put it in paragraph 4:

Mr Dring went on, under the heading “Why I am bringing this claim”, to state as follows in paragraph 7:

He, then, said this in paragraph 8:

In paragraph 12, under the heading “Why it is in the public interest for the court to determine this matter”, he stated as follows:

It was Mr Weir QC’s position that this is a case in which the Forum has a “legitimate interest” in the Bundle C documents sought and that “the default position” identified by Lady Hale in the Supreme Court at [44] applies. As such, he submitted, again by reference to what Lady Hale had to say at [44], “the public should be allowed access, not only to the parties’ written submissions and arguments, but also to the documents

Mr Weir QC submitted, in this context, rightly, that it makes no difference that the underlying proceedings settled before a judgment was produced. He pointed not only to what Hamblen LJ had to say in the Court of Appeal at [124] and [126] but also to In the matter of Z [2019] EWCOP 55, in which, referring to the decision of the Supreme Court in the present case, Morgan J had this to say at [21]:

Nor, Mr Weir QC also observed, again relying on what Hamblen LJ stated in the Court of Appeal, this time at [135], and also on what Morgan J had to say in In the matter of Z at [26], does it matter that the Forum’s interest is other litigation. As Morgan J put it:

Mr Weir QC submitted as to the balancing exercise required to be undertaken that it is a balancing exercise which has, in the present case, already been undertaken by the Master (and upheld by the Court of Appeal). Mr Weir QC pointed out, as to this, that there was no appeal to the Supreme Court in relation to the Master’s exercise of discretion and the Court of Appeal’s upholding of the exercise of that discretion. As a

Mr Weir QC’s alternative position was that, if the discretion still falls to be exercised at this juncture, then, it should be exercised in favour of the Forum so as to mean that access is provided to the documents contained within Bundle C.

It was his submission, in this connection, that the discretion is broad and, in particular, that there is no requirement that a non-party applying to access court documents must establish that the purpose marries up with the rationale for the principle of open justice.

As to how the Court should exercise its discretion, Mr Weir QC submitted that, if access to the documents with which the Forum has already been provided satisfies the

In any event, he went on to submit, if a purely commercial interest in documents can satisfy the relevant requirement, then, the Forum’s public interest (whether for use in other litigation or for informing the public about a matter of obvious public interest and concern) must clearly do so also.

Mr Weir QC also highlighted how Cape has not raised any countervailing interests in response to the application at any stage. On that basis, he suggested, there is no reason not to apply the default position, and so to order provision of the documentation.

Furthermore, Mr Weir QC submitted, there are no issues of practicality or proportionality which arise in this case given the retention by Cape of clean, electronic, copies of the bundles.

Mr Webb QC submitted that Mr Weir QC’s primary position that the Court has no fresh discretion to exercise is not tenable since, if Mr Weir QC were right and there is now no discretion to be exercised, then, the Supreme Court would not have remitted the matter in the way which it did.

Mr Webb QC, further, submitted that this is not a case in which the principle described by Lady Hale in the Supreme Court judgment at [43] is applicable. He submitted, specifically, that the Forum is unable to establish (the burden being upon it, as Mr Weir QC acknowledged) that the Bundle C documents are required in order for it to be understood “how the justice system works” in the sense described in the third sentence of [43], namely in order “to understand the issues and the evidence adduced in support of the parties’ cases”.

Mr Webb QC observed, in this context, that the Supreme Court decision ought to be regarded as a restatement of the open justice principle, in particular that the

Mr Webb QC additionally submitted that, in weighing the various factors in deciding whether an order ought to be made, regard should be had to the fact that, if the documents are obtained, then, Cape is in no position to make representations concerning its own documents in such other proceedings as they might come to be deployed in. This, Mr Webb QC suggested, is a factor which should mean that no order is made.

Mr Webb QC lastly submitted that it would, in any event, be impracticable or disproportionate to require that the Bundle C documents are provided, and so that the order sought ought not to be made.

It is convenient to start by addressing Mr Weir QC’s primary submission that the Court has no discretion but is, on the contrary, obliged to order production of the documents in Bundle C because the Master has already decided, in the exercise of her discretion (upheld by the Court of Appeal), that such documents should be provided.

Mr Weir QC had in mind, in this context, the following passages in the judgment of Hamblen LJ in the Court of Appeal at [133]-[138]:

In my judgment the Master was clearly entitled to find that [the Forum] had a legitimate interest and this finding is not open to challenge on appeal.

As the authorities make clear, an entirely private or commercial interest in a document can qualify as a legitimate interest. Often, as in [FAI] and Law Debenture Trust and Dian, it will be an interest in related litigation.

In the present case, [the Forum’s] interest is of a public nature. The Forum provides help and support to asbestos victims, it is in some respects a pressure group and it is involved in lobbying and promoting asbestos knowledge and safety. All these qualify as providing a legitimate interest, as the Master found at [124]. The Master recognised at [152] that the material which [the Forum] sought was of ‘legal, social and scientific interest’. As set out by the Master at [5] of her judgment of 6 April 2017 there was a ‘public interest in a general sense in asbestos liability and injury litigation, given the death toll and injury toll that has arisen down the years’.

There is more to be said for [Cape’s] argument that it has not been shown that there are strong grounds in the interests of justice for access to the documents, but it is not necessary to decide this issue since, on my analysis of the applicable principles, it does not arise.

In relation to documents which fell within her jurisdiction, I would accordingly reject the challenges made to the exercise of the Master’s discretion.”

This was a submission which Mr Weir QC described as one which he could “not quite let go” since his position was that the “legitimate interest” approach discussed below remains appropriate. It is not, however, a submission which I can accept. As Mr Webb QC pointed out, if Mr Weir QC were right and there is now no discretion to be exercised, then, the Supreme Court would not have remitted the matter in the way which it did. The Supreme Court having remitted the application to me, in order that I should decide it in accordance with the principles set out by Lady Hale, it cannot be right that it is now incumbent upon me simply to make the same order as the Master did. The more so, in circumstances where in the Court of Appeal, at [54], Hamblen LJ described the Master’s order as being “unprecedented” in scope.

The point, in fact, goes further, however, since the fact that the Supreme Court made the order which it did itself serves to demonstrate not only that the approach adopted by the Master should be revisited by me but also that the approach adopted by the Court of Appeal, on appeal from the Master, should also be revisited. Were the position otherwise, then, again, the Supreme Court would not have remitted the matter to me but would, instead, itself have made whatever order it considered to be appropriate.

I am clear that Mr Webb QC was right when he characterised the Supreme Court as having essentially restated the applicable principles. This is apparent from Lady Hale’s reference at [34] to the Court of Appeal having “had the unenviable task of trying to reconcile the very different approaches taken by that court in FAI and Guardian News and Media”. It is apparent also from the fact that Lady Hale went on, in the next sentence, to refer to the Supreme Court as having “the great advantage of being able to consider the issues from the vantage point of principle rather than the detailed decisions which had been reached by the courts below”. Lady Hale was here recognising that there were difficulties in reconciling previously decided cases and taking the opportunity to restate the core principles in recognition of this.

That this is the position is underlined by Lady Hale’s later reference, at [49], to the principles governing the exercise of the inherent jurisdiction as being “laid down in Guardian News and Media, as explained by this Court in Kennedy, A v British Broadcasting Corporation and this case”. Lady Hale was making it clear that, as between Guardian News and Media and FAI, the approach adopted in the former (albeit as “explained”) is to be preferred over the approach adopted in the latter.

As I see it, it was precisely because, as Lady Hale observed at [31], the Court of Appeal in the present case “largely adopted the approach in FAI, while recognising that in certain respects the law had been developed” that the Supreme Court decided that the case should be remitted to me.

That the Court of Appeal did, indeed, largely adopt the approach in FAI is clear from a number of passages in the judgment of Hamblen LJ. Thus, having considered FAI and a number of other cases which adopted the FAI approach, Hamblen LJ went on, at [85], to refer to Guardian News and Media , specifically the following passages in the judgment of Toulson LJ (as he then was):

Hamblen LJ, then, at [86], recorded the Forum as having “submitted that the default position described by Toulson LJ now represents the law in both criminal and civil proceedings” and that to the extent that FAI “is authority for a more restrictive approach, it no longer represents good law”.

He went on, at [87], to record Cape’s submission that Guardian News and Media is a case which was concerned only with criminal proceedings and, in any event, was wrongly decided, before observing at [88] that, in his judgment, FAI “still stands as Court of Appeal authority that there is no inherent jurisdiction to allow a non-party access to trial documents simply on the basis that they had been referred to in a skeleton argument, witness statement, expert’s report or in court”.

Hamblen LJ, then, had this to say at [89]:

Later, when considering the exercise of the Court’s discretion at [115] to [130], Hamblen LJ referred to Dian AO v Davis Frankel & Mead [2005] 1 WLR 2951 and Pfizer Health AB v Schwarz Pharma AG [2010] EWHC 3236 (Pat), specifically in the case of the latter, at [120], the summary of the applicable principles provided by Floyd J (as he then was) at [20], as follows:

The requirement for permission is a safety valve to allow access to documents which should in all the circumstances be provided …;

The principle of open justice is a powerful reason for allowing access to documents where the purpose is to monitor that justice was done, particularly as it takes place …;

Where the purpose is not to monitor that justice was done, but the documents have nevertheless been read by the court as part of the decision making process, the court should lean in favour of disclosure if a legitimate interest can still be shown for obtaining the documents …;

Where the principle of open justice is not engaged at all, such as where documents have been filed but not read, the court should only give access where there are strong grounds for thinking that it is necessary in the interests of justice to do so.”

Hamblen LJ, then, at [123], described Cape as having submitted “that documents that relate only to a trial in a matter which settled are not covered by the principle of open justice, for the simple reason that if no judgment is delivered there is no need, nor is it possible, to supervise the judicial process”.

Hamblen LJ rejected that submission, at [124], as follows:

Hamblen LJ made essentially the same point at [126]:

He, then, at [127] identified the principles applicable to the exercise of the discretion in relation to an application under CPR 5.4C(2) by a non-party as entailing the Court having “to balance the non-party’s reasons for seeking copies of the documents against the party to the proceedings’ private interest in preserving their confidentiality”. In this respect, he identified relevant factors as being likely to include:

The extent to which the open justice principle is engaged;

Whether the documents are sought in the interests of open justice;

Whether there is a legitimate interest in seeking copies of the documents and, if so, whether that is a public or private interest.

The reasons for seeking to preserve confidentiality.

The harm, if any, which may be caused by access to the documents to the legitimate interests of other parties.”

Hamblen LJ clarified at [129], by reference to FAI (amongst other cases), that these various factors, in his view, applied also to the Court’s inherent jurisdiction:

It is clear, therefore, that, as far as the Court of Appeal was concerned, the “legitimate interest” approach adopted in FAI applied. Indeed, Hamblen LJ went on, at [131] to [138] to address the issue of “legitimate interest” by reference to the Master’s decision that the Forum had such an interest in the documents sought.

It seems to me, in the circumstances, that Mr Webb QC must be right when he submitted that the Supreme Court’s decision to remit the matter to me, taken together with Lady Hale’s approval of the General News and Media approach (“as explained”) in contradistinction to the FAI approach, must mean that the Supreme Court should, indeed, be regarded as having restated the open justice principle in a way which no longer makes it appropriate to apply the “legitimate interest” approach.

It is necessary, in the circumstances, to consider what, in line with the Supreme

The answer is that, consistent with the statement of principle by Lord Toulson in Guardian News and Media (as quoted by Lady Hale at [2]), the Supreme Court took a broad view of the Court’s inherent jurisdiction. This is reflected, indeed, in what Lady Hale had to say concerning limits, at [41] (in the last sentence), namely:

The Supreme Court’s broad approach to the open justice principle is further confirmed by what Lady Hale went on to say in the paragraphs which follow. Thus, she recognised at [42] (in the first sentence) that the “principal purposes of the open justice principle are two-fold and there may well be others”, before going on to identify the first as being “to enable public scrutiny of the way in which courts decide cases” and the second being, as stated at [43], “to enable the public to understand how the justice system works and why decisions are taken”.

In any event, whether or not the “legitimate interest” approach remains valid in the light of the Supreme Court’s decision, it was Mr Weir QC’s position that this is a case in which “the default position” identified by Lady Hale at [44] applies, namely where “the public should be allowed access, not only to the parties’ written submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing” (here, the Bundle C documents).

It was Mr Weir QC’s submission that there is no prior hurdle to the exercise of the Court’s discretion through the balancing of relevant considerations of the type suggested by Mr Webb QC, namely that the third party applicant should have to establish that production of the documents would advance the open justice principle in the sense that it is not sufficient for an applicant to come to the Court and say that it wants the Court to order that it be provided with documents read by a judge on the basis of the open justice principle but for a reason (however otherwise legitimate) which is not itself rooted in the open justice principle.

Mr Weir QC submitted that, instead, the Court should, in effect, proceed straight to the balancing exercise. As he put it, an application such as this “proceeds on a sliding scale”. It is, accordingly, appropriate for the Court to decide, in the exercise of its discretion and weighing up the factors for and against the making of an order, that in a given case the open justice principle does not warrant the making of the order sought. What the Court should not do, Mr Weir QC suggested, is require that a good reason be shown by the applicant as to why the documents sought would advance the open justice principle and, only if such a good reason is shown, then proceed to the balancing exercise referable to the Court’s discretion. In short, it was Mr Weir QC’s submission that the discretion is broad and, in particular, there is no threshold requirement that a non-party applying to access Court documents must establish that the purpose marries up with the rationale for the principle of open justice before the discretion comes to be exercised. In this respect, Mr Weir QC made the point that, if access to the documents with which the Forum has already been provided satisfies the “principal purposes of the open justice principle”, as the Supreme Court must have thought is the case given that at [50] Lady Hale made it clear that the Supreme Court was upholding the decision of the Court of Appeal insofar as certain documents were concerned, then, it must follow, a fortiori, that access to underlying documents (the Bundle C documents) does so also.

In support of his core submission that it is incumbent upon a third party making an application for production of documents to show a good reason why those documents will advance the open justice principle, Mr Webb QC quibbled with Mr Weir QC’s reliance on what Lady Hale had to say at [44] concerning “the default position” being “that the public should be allowed access, not only to the parties’ written submissions and arguments, but also to the documents which had been placed before the court and referred to during the hearing”. He submitted that this does not detract from the obligation on the part of the third party to identify how the open justice principle justifies the application in the particular case. This, he submitted, is clear from the way in which Lady Hale described matters at [43], specifically the references to the public needing “to understand how the justice system works and why decisions are taken” and to their having “to be in a position to understand the issues and the evidence adduced in support of the parties’ cases”.

It was Mr Webb QC’s submission that nothing which Lady Hale went on to say in this paragraph or at [44] detracts from such a requirement. Indeed, he suggested, it is clear from what Lady Hale went on to say at [45] that, whilst the Court has the “power to allow access”, an applicant has “no right to be granted it”. Mr Webb QC submitted, in effect, that the first sentence of [45], beginning with the word “However”, should be treated as though it carried directly on from the third sentence in [43], ending with the words “evidence adduced in support of the parties’ cases”. In those circumstances, Mr Webb QC suggested, Lady Hale’s reference to “the default position” being as stated in [44] does not greatly assist the Forum. On the contrary, Mr Webb QC submitted, the position is as clearly stated by Lady Hale in the second sentence in [45], namely that:

The position is underlined, Mr Webb QC submitted, by Lady Hale’s reference in the last sentence of [47] to non-parties not seeking access “unless they can show a good reason why this will advance the open justice principle” - as well as “that there are no countervailing principles of the sort outlined earlier, which may be stronger after the proceedings have come to an end, and that granting the request will not be impracticable or disproportionate”.

It seems to me that Mr Webb QC must be right about this, and so that a third party making an application for access to documents should show that the documents will advance the open justice principle. This appears, indeed, to be what Lady Hale was saying in the passages to which I have referred. It is also consistent, on a proper analysis, with what was decided in Guardian News and Media since it is important to appreciate that in that case, as Toulson LJ made clear at [82], the applicant, The Guardian, had “put forward credible evidence that it was hampered in its ability to report as full as it would have wished by not having access to the documents which it was seeking”.

This followed an earlier passage, at [76], where Toulson LJ said this:

It was with this journalistic purpose in mind that Toulson LJ went on to say at [82] as follows, after referring to The Guardian as having “put forward credible evidence”:

It was also with this journalistic purpose in mind that Toulson LJ had a little earlier made this observation at [79]:

This, then, is the context for what Toulson LJ went on to say at [85], as expressly adopted by Lord Reed in A v BBC at [41] and quoted with apparent approval by Lady Hale at [39]. In other words, in stating what he did at [85], Toulson LJ would have had in mind the evidence which was before him on the part of The Guardian which was specifically directed towards the open justice principle. It is in this respect that Toulson LJ described “the default position” being “that access should be permitted on the open justice principle”, going on immediately afterwards to observe that “where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong”. He, then, went on to state, in terms, that:

The reference to the material’s potential value “in advancing that purpose” is entirely consistent with the proposition put forward by Mr Webb QC that a third party making an application such as this should have to show that the documents sought will advance the open justice principle and that it is not sufficient merely that the applicant is heard to say that documents should be made available in accordance with the open justice principle irrespective of whether those documents will, once made available, advance that principle (as opposed to serve some other purpose).

The same point was made by Lord Toulson (as he had by then become) in Kennedy at [113], citing from his judgment in Guardian News and Media at [85], and, before doing so, describing the open justice principle as “never” being “absolute because it may be outweighed by countervailing factors”.

I am quite clear, in the circumstances, that a third party should not merely show that access to documents would be in accordance with the open justice principle but also that such access would advance the open justice principle. If the position were otherwise, and an applicant could merely insist on production of documents on the basis that this would be in accordance with the open justice principle, there would be nothing to stop anybody making an application and doing so in overly wide terms. That clearly is not what the Supreme Court (whether in this case or in Kennedy or A v BBC ) can have contemplated would justify an application under the inherent jurisdiction.

It does not follow, however, that Mr Webb QC was right when he submitted that there is, in effect, a prior hurdle to the exercise of the Court’s discretion on an application such as this since nothing in the authorities, including Lady Hale’s judgment in the present case, leads me to conclude that there is such a freestanding prerequisite. On the contrary, it seems to me that Mr Weir QC was probably right to describe there being something of a “sliding scale”. Where a particular case appears on that “sliding

Indeed and in fairness, Mr Weir QC made it very clear during the course of his submissions that it is not the Forum’s position that, as Mr Webb QC characterised it, the open justice principle is engaged simply because the documents sought were referred to in submissions or other evidence and that this is, in effect, an “open sesame” to obtaining the Bundle C documents. Mr Weir QC acknowledged, in terms during the course of his reply submissions, that even the so-called “default position”, described by Lady Hale at [44] and upon which he relied so heavily, is still subject to the exercise of the Court’s discretion (and so the “sliding scale”, to which he referred).

I agree with Mr Weir QC, therefore, that the proper approach is not to seek to impose

That this must be the proper approach is, I agree with Mr Weir QC, demonstrated by the fact that, despite remitting the matter to me, the Supreme Court nonetheless upheld the Court of Appeal’s decision, dismissing the appeal brought by Cape against the Master’s order, to require that Cape make available various documents to the Forum. As Mr Weir QC pointed out, if Cape’s submission as to the appropriate legal approach were right, then, the appeal before the Supreme Court would have been allowed in part and the Forum would not have been permitted to have access to the documents to which it has already had access. The Forum must, in short, Mr Weir QC submitted, have done sufficient to trigger the open justice principle and, indeed, to demonstrate that that principle would be advanced by its being given access to those documents in order for at least that level of documentary access to be permitted.

The question, in such circumstances, is whether, in the exercise of the Court’s discretion, conducting the necessary balancing exercise, it is appropriate that the Forum should be given access to the further (Bundle C) documents which it seeks.

Mr Weir QC submitted that the reasons given by Mr Dring and Ms Bains justify the making of an order for production of the documents contained in Bundle C. As previously observed, he relied for these purposes on Lady Hale’s observations at [43], submitting (I repeat, correctly) that the fact that the documents are sought for the purposes of other litigation (in all probability not involving Cape but between claimant employees and their employers) is no bar to the making of an order. Mr Weir QC made the point, in particular, that the Bundle C documents are documents which, whilst they were seen by the Court (as it happens, by me as the trial judge), will not be available in other litigation (and so seen by other judges) unless the present application is successful.

Mr Weir QC submitted, based on the evidence from Mr Dring and Ms Bains, that the documentation is required in order to enable the Forum to understand the evidence adduced in support of the parties’ cases in the proceedings which took place before me. He suggested that having sight of the (admittedly very lengthy) experts’ reports is no substitute for being able to look at the underlying documentation.

Indeed, as already mentioned, it was Mr Weir QC’s position that, the Forum having already obtained access to the written submissions and experts’ reports, thereby obtaining what he described as “hearsay evidence” as to the content of the Bundle C documents, then, it must follow, a fortiori, that access to those underlying documents would also be appropriate. I am not impressed, however, by this contention. I cannot accept the proposition that, since the Forum already has an understanding of issues and evidence from sources which have already been made available to it, so it follows that the Forum should have access to underlying documentation (including documentation referred to in the material which the Forum has) which, necessarily, will not give it an understanding which it does not already have.

Specifically, Mr Weir QC made reference to TDN13 issued by the Factory Inspectorate in 1970 and a decision of the Court of Appeal in 2011, namely Williams v University of Birmingham [2011] EWCA Civ 1242. In that case, Aikens LJ observed as follows in relation to TDN13 at [61]:

Mr Weir QC relied on this case as demonstrating that TDN13 is especially relevant. He referred also, fairly it should be said, to Bussey v 00654701 Ltd (formerly Anglia Heating Ltd) [2018] EWCA Civ 243, [2018] ICR 1242, in which Jackson LJ had this to say concerning Williams , at [50] and [51]:

Mr Weir QC went on to refer to Baker v Quantum Clothing Group Ltd [2011] 1 WLR 1003, [2011] UKSC 17, in which Lord Dyson said this at [101]:

It was Mr Weir QC’s submission, in the light of what Lord Dyson had to say here, that there is (he would say at a minimum) scope for claimants in other litigation to allege that TDN13 is appropriately to be regarded as “compromised”. It is on this issue, Mr Weir QC submitted, that the underlying documents contained in Bundle C (or some of them) will be (or may be) of significant value to claimants or potential claimants in other proceedings.

Mr Weir QC added that it is no answer for Cape to suggest that the documents could simply be obtained by individual litigants through disclosure within individual proceedings because inter partes disclosure would only apply in actions against Cape, whereas most asbestos claims are brought against the employer and, furthermore, the Court would be most unlikely to order disclosure to the level obtained in the 6-week trial in this case in an ordinary asbestos claim on grounds of proportionality.

Mr Weir QC observed also how Lady Hale had, at [50], noted that Cape had not “setup any counter-vailing rights of its own”. He submitted that there is no evidence before the Court of harm to Cape’s interests in respect of any particular document, observing that Cape was in a position to provide evidence as to the nature and impact of the documents but did not do so.

Furthermore, as previously mentioned, Mr Weir QC suggested that no issues of practicality or proportionality arise in this case given the retention by Cape of clean, electronic, copies of the bundles and given that the Forum will meet all copying costs.

For his part, Mr Webb QC submitted that it is not a case in which the principle described by Lady Hale in the Supreme Court at [43] is applicable. He submitted, specifically, that the Forum is unable to establish (the burden being upon it, as Mr Weir QC acknowledged) that the Bundle C documents are required in order for it to be understood “how the justice system works” in the sense described in the third sentence of [43], namely in order “to understand the issues and the evidence adduced in support of the parties’ cases”.

On this basis, Mr Webb QC submitted, exercising the discretion afresh, the Court should refuse the application for the Bundle C documents since the second aspect of the open justice principle identified by Lady Hale, as set out at [43], is not engaged at all, the Forum’s objective having no connection with the open justice principle.

It will be appreciated that this is a submission which I cannot accept, at least in its purest form. As I have explained, in my view, the question of whether the documents in Bundle C will advance the open justice principle (and, if so, to what extent) is a matter which falls to be considered by the Court but not as a freestanding issue arising before the Court’s exercise of discretion and, instead, as part of the balancing process which is entailed in the Court deciding how the discretion should be exercised.

It is, then, to that balancing exercise (and the discretion) to which I now come. As I shall explain, I have reached the clear conclusion that it would not be appropriate to order production of the Bundle C documents to the Forum. I say this having regard to the authorities to which I have referred (in particular, Lady Hale’s description of the open justice principle) and having regard to Mr Weir QC’s “sliding scale”, for a number of reasons.

First, I agree with Mr Webb QC that, in truth, the reason given by Mr Dring (and amplified by Ms Bains), namely that the Forum should be able to use the documents for other purposes, including in relation to other litigation, does not advance the open justice principle. Specifically, the documents in Bundle C which are sought are clearly not required by the Forum in order to understand what the issues in the underlying proceedings were and what the evidence concerning those issues constituted.

Secondly, although obviously related to the first point, the evidence adduced by the Forum in support of the application does not really explain how granting access to such documents will advance the open justice principle. The focus is, rather, on seeking to establish a “legitimate interest” when, as previously explained, that is no longer the appropriate focus. I make it clear that I acknowledge that the use of documents in other litigation represents no bar to an application. However, the collateral purpose identified by Mr Dring and Ms Bains, in truth, has no real connection (or, in any event, an insufficient connection) with the open justice principle. Still less does it advance (or sufficiently advance) that principle.

Thirdly, it should be noted that nowhere in the evidence is there a suggestion that the Forum is unable to understand the issues which arose in the underlying proceedings or the evidence which was adduced in those proceedings. On the contrary, it is clear that

Fourthly, again following on from the previous point, and perhaps most crucially given that this is a discretionary matter, it is telling that the Forum already has documents, in the form of experts’ reports in particular but also the written opening and closing submissions, which enable it to understand the issues and the evidence adduced in support of the parties’ cases. The experts’ reports, in particular, were very lengthy and set out substantial extracts from the underlying documents. Any reader of those experts’ reports, and the various written submissions, could be in no doubt as to what the issues were and what the evidence adduced by the parties comprised. Mr

Mr Webb QC gave as an example a passage in Cape’s written closing submissions at trial, a document which runs to some 146 pages, at paragraph 118.6, which reads as follows:

The same applies to many other documents which are quoted in Cape’s written closings (including in an even more lengthy 171-page appendix). It is not, however, only Cape’s written submissions which provide such information since there are also the written submissions (in each case again lengthy written submissions) which were produced by the other parties to the proceedings. These, too, contain quoted extracts from the underlying documents which are to be found in Bundle C.

There are also the (equally lengthy) experts’ reports to consider. These, again, are documents which the Forum has already been provided with.

To take an example concerned with TDN13 in particular, the report prepared by Martin Stear refers to a particular document described as “Document 249 D4-00296”, as follows:

The next paragraph of Mr Stear’s report, paragraph 5.51, reads as follows:

Another example concerns what is stated in the same report at paragraph 5.66. This reads:

cutting incombustible board gave levels of 100 fibres/ml where there was no exhaust ventilation and 1.1 to 4.45 fibres/ml where there was portable exhaust ventilation; and

drilling resulted in an exposure of 1.0 to 1.95 fibres, without exhaust and 0.7 to

Paragraph 5.67, then, goes on as follows:

Table 4, then, follows. Interestingly, although no coincidence obviously, it is this table which was produced (together with other underlying documents) as part of a talk given by barristers at 12 King’s Bench Walk, Mr Michael Rawlinson QC and Ms Gemma Scott, who appeared in the underlying proceedings. The PowerPoint presentation (including Table 4 and the other documents to which reference was made) appears as an exhibit to Ms Bains’ second witness statement made in support of the application, where she described it as follows in paragraph 16:

Mr Stear’s report, then, goes on at paragraph 5.69 to state as follows:

Mr Stear, then, set out in paragraph 5.71 “the relevant tables of results … that include work with Maronite and Asbestolux”. Again included among these tables is a table described as “Summary 1 - Lowest and Highest Concentrations - fibres per cc” which appears in the presentation to which Ms Bains refers.

Mr Stear, then, went on, in paragraphs 5.72 to 5.74, as follows:

These exposure surveys may be those referred to in minutes of meetings., However I do not know the extent to which this data was shared with the HMFI/HSE and the extent to which it influenced the data in their publications. I have not seen any documentation that suggests the exposure data was shared with HMFI.

The various exposure data sources suggest higher levels than reported in HSE’s documents TDN42 and EH35. Whilst this seems a reasonable conclusion to me, it is difficult to know to what extent ARC were finding higher levels than the Factory Inspectorate. There is little detail with regard to the exact circumstances of exposure and of the sampling methodology, other than it was probably by this time, sampling and analysis by the ARC’s new membrane filter method. However, I have very broadly taken the Factory Inspectorate’s figures and used the means, as far as possible, from document D2-242 …”.

The detail apparent from these various passages, which were highlighted by Mr Webb QC purely by way of illustration, belies any suggestion on the part of the Forum that it lacks a proper understanding of the issues which arose in the underlying action or that it does not know what evidence was adduced by the parties in those proceedings. Indeed, as Mr Webb QC observed, it is instructive that in an appendix to Mr Weir

Fifthly, although in truth this point draws the previous points together, in making the application, the Forum is seeking not to advance the open justice principle but simply trying to obtain documentation for deployment in other litigation. The Forum already knows what the issues in the underlying litigation were and what the evidence before the Court in that litigation entailed. The real motivation behind the application is a concern on the part of the Forum that it would be more useful from an evidential perspective were the underlying documents contained within Bundle C to be available for use in other litigation. In that sense, the Forum is, in effect, making a third party disclosure application in relation to other proceedings but seeking to do so without regard to the constraints to which a genuine disclosure application would be subject.

As Mr Webb QC pointed out, the CPR make very clear provision for the situations in which a person can obtain documents for use in litigation, including pre-action disclosure where appropriate and justified. For example, a person can seek to obtain disclosure (as Mr Webb QC emphasised, subject always to safeguards such as CPR 31.22 in respect of the use of documents): by an application for pre-action disclosure under CPR 31.16 against a respondent “likely to be a party to subsequent proceedings”; by a third party disclosure application under CPR 31.17; against a defendant after commencement of a claim in accordance with the standard disclosure provisions under CPR 31.6; in limited circumstances, via a Norwich Pharmacal order

The Forum has not sought to bring an application on the basis of any of these provisions. Instead, it now purports to rely on the inherent jurisdiction.

Sixthly, but related to the point just made, I consider that there was some substance in a further submission which was made by Mr Webb QC. This was that, whilst it needs obviously to be appreciated that the position is different where documents have been deployed in proceedings before the Court so as to bring into play the potential application of the open justice principle compared with the situation where documents have merely been disclosed but there has been no hearing so as to mean that the open justice principle is not applicable, nonetheless, it is relevant to consider, as part of the exercise of discretion, the fact that documents produced pursuant to an application such as the present under the Court’s inherent jurisdiction are documents to which the ‘implied undertaking’ now to be found in CPR 31.22 has no application. Indeed, it is the Forum’s avowed intention that the documents should be used in other proceedings or at least made available for such use. That necessarily will be without any restriction. However, as Mr Webb QC pointed out, Cape will have no ability (at least ordinarily) in such other proceedings to put forward any explanation as to particular documents of its own in the way that Cape was able to do in the underlying proceedings in which the documents were disclosed and, then, deployed at trial. As Mr Webb QC submitted, in weighing the various factors in deciding whether an order ought to be made, regard should be had to this. It is by no means a decisive factor. It is, however, a consideration which does seem to me to need to be taken into account. It is certainly a countervailing factor.

Seventhly, I consider there to be substance also in Mr Webb QC’s submission that regard should be had to the fact that the Forum chose not to make an application during the course of the trial. Plainly, this does not preclude an application being made at this juncture. However, it is instructive to have regard to the position had an application been made at an earlier stage prior to the conclusion of the trial, as opposed to at a point after the proceedings had settled. I am clear that, had an application been made at trial, then, appropriate steps would have been taken in order to ensure that the Forum (and its representatives) had the awareness described by Lady Hale in her judgment in this case at [43].

Such measures might have included, for example, allowing a computer screen to be looked at as and when documents in what was to become Bundle C were cited. I consider it unlikely, however, that the Court would have required that the entirety of that bundle be made available to the Forum. Given this, it would seem odd that the Forum should now, through the making of the present application, be put into a better position than would have been the case had the application been made at trial. As Mr Webb QC submitted, there is a very real difference between the Court permitting nonparties inspection of documents during the course of a trial (so as to enable the trial process to be fully comprehensible), on the one hand, and the Court ordering a party, after the trial has been settled and all further proceedings dismissed, to deliver up documents to such third parties for those third parties to make whatever use of them they might wish. Put shortly, had the Forum sought production of the Bundle C documents at trial on the basis now put forward in support of the present (later) application, as set out in Mr Dring’s and Ms Bains’ witness statements, I am clear that the Court would have declined to order production.

All in all, taking account of the submissions which were made, respectively, by Mr Weir QC and Mr Webb QC, and weighing the factors in support of the application against the countervailing factors to which I have made reference in what is, as Lady Hale put it at [45] (by reference to both Kennedy and A v BBC) “a fact-specific balancing exercise”, I have come to the clear conclusion that the appropriate exercise of discretion in this case results in a decision that the Bundle C documents ought not to be made available to the Forum.

Indeed for reasons which have already been stated, I have the distinct impression that in the present case the open justice principle is being used by the Forum for a purpose which goes further than is legitimate (using that word in a non-technical sense) on an application such as this. It seems to me that Mr Webb QC was right when he drew an analogy with the situation which arose in a recent decision in the defamation context, Warby J observing in Barclay v Barclay [2020] EWHC 1180 (QB) as follows at [21]:

I should, lastly, mention two further matters.

The first concerns Mr Webb QC’s suggestion that it would, in any event, be impracticable or disproportionate to require that the Bundle C documents are provided, and so that the order sought ought not to be made. I do not agree with this. In practical terms, very little would be required in order to comply with the order sought. Bundle C already exists, in circumstances explained in a moment, and so to supply it would be a straightforward matter.

The second concerns the status of Cape on this application and, related to this, the nature of the order which the Forum seeks. It was Mr Webb QC’s submission that the Forum, in effect, seeks a mandatory injunction against Cape requiring Cape to produce the Bundle C documents. The order of the Court of Appeal, indeed, in paragraph 7 required that Cape “shall, on payment by [the Forum] to [Cape] of [Cape’s] reasonable copying costs, provide [the Forum] with one copy of each” of the documents listed in Appendix 2 (namely witness statements, experts’ reports and written submissions). The Supreme Court’s order was to similar effect (see paragraph 2) and, indeed, paragraph 1 of the order was framed in these terms:

Furthermore, in the Court of Appeal, the mandatory nature of the relief sought was expressly recognised by Sir Brian Leveson P when, albeit in relation to Bundle D rather than Bundle C, he described the Master as having ordered “a mandatory injunction which effectively required the parties to spend £1,800 to transfer Bundle D onto a hard drive which she then ordered to be delivered up to and retained by the Court after the case had settled” (see paragraph 143(4)).

Mr Webb QC submitted, in the circumstances, that it would be wrong to characterise Cape as being merely an interested party and, for that reason, to treat Cape’s observations on the application as somehow lacking the significance which they might otherwise have. He pointed out, indeed, that, following the Court of Appeal’s judgment, Cape adopted an essentially pragmatic position by suggesting that its solicitors should hold the relevant documents pending final determination of the application by me or another High Court judge after the remitted hearing contemplated by the Court of Appeal had taken place.

As will be apparent from what I have had to say in this judgment, I have approached the application on the basis that, in practice, the position of Cape is a position which ought properly to be taken into account. In truth, Mr Weir QC approached matters in the same way. To be clear, however, I have not placed any weight on the fact that, again in practice, were an order for production to be made, it would be an order which would amount to a mandatory injunction against Cape. Put differently, I am unpersuaded that this is a feature which matters for discretionary purposes in this case.