[2025] EWHC 1931 (KB)

“Publicity is the very soul of justice” (Scott v Scott [1913] AC 417, in which the House of Lords drew upon Jeremy Bentham).

It is for this reason that open justice is “a fundamental principle of English Law” (JC Bamford Excavators Ltd v Manitou UK Ltd [2023]EWCA Civ 840 at [71]). As observed by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening)[2012] EWCA Civ 420; [2013] QB 618, and endorsed by Lady Hale in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38, “Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse.”

CPR 5.4C (Supply of documents to a non-party from court records) is one of the central civil procedural mechanisms reflecting the importance of open justice. It states as follows:

“(1)

The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of –

(a)

a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it;

…

(2)

A non-party may, if the court gives permission, 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 another person.

…

(3)

A non-party may obtain a copy of a statement of case or judgment or order under paragraph (1) only if –

(a)

where there is one defendant, the defendant has filed an acknowledgment of service or a defence;

(b)

where there is more than one defendant, either –

(i)

all the defendants have filed an acknowledgment of service or defence;

(ii) at least one defendant has filed an acknowledgment of service or a defence, and the court gives permission;

(c)

the claim has been listed for a hearing; or

(d)

judgment has been entered in the claim.

(4)

The court may, on the application of a party or of any person identified in a statement of case –

(a)

order that a non-party may not obtain a copy of a statement of case under paragraph (1);

(b)

restrict the persons or classes of persons who may obtain a copy of a statement of case;

(c)

order that persons or classes of persons may only obtain a copy of a statement of case if it is edited in accordance with the directions of the court; or

(d)

make such other order as it thinks fit.”

The ‘general rule’ therefore is that a person who is not a party to proceedings may obtain from the court records a copy of a statement of case (which includes particulars of claim, defences and replies). This reflects the principle that the allegations parties to civil proceedings make against one another are public (see DMK v News Group Newspapers Ltd [2016] EWHC 1646 (QB), per Warby J (as he was then) at [12]). CPR 5.4C(3) sets out circumstances in which a non-party may obtain a copy of a statement of case or a judgment or order pursuant to CPR 5.4C(1). It is not in dispute that one or more of the requirements of 5.4C(3) have been met in this case.

The rule is ‘general’ in the sense that there may be exceptions to it. This is provided for in CPR 5.4C(4), pursuant to which a party or any person identified in a statement of case may apply to the Court for the right under CPR 5.4C(1) to be restricted in one way or another. In the face of the application for unredacted copies of the pleadings, it is in substance an order pursuant to CPR 5.4C(4)(c) sought by the Manufacturer Defendants restricting publication to the redacted versions.

CPR 5.4C(1) can be distinguished from CPR 5.4C(2), which relates not to statements of case, but to other documents on the court record. To obtain such documents, it is necessary for the third party to obtain the permission of the Court.

In Dring, Lady Hale identified that the principal purpose of open justice is two-fold. The first is to enable public scrutiny of the way in which the courts decide cases, holding the judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly. The application from the third parties places more emphasis, however, on the second, which 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.”

Dring itself was not a case under CPR 5.4C(1), in respect of access to pleadings, but pursuant to CPR 5.4C(2), access to other documents. It was in this context that Lady Hale observed that 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 therefore for the person seeking access to documents pursuant to CPR 5.4C(2) 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.

This requirement was emphasised in the judgment of Picken J, in Dring, when the matter had been remitted to the Court following the Supreme Court judgment ([2020] EWHC 1873 (QB)). Applying the Supreme Court’s decision, Picken J identified that an applicant (under CPR 5.4C(2)) 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. A very recent example of where such an applicant could not do so was in X &Y v BBC “In re HMP” [2025] EWCA Civ 824. In this case the Court of Appeal identified circumstances in which the courts must respect the limits of the open justice principle. Court files may contain a great deal of information that is commercially sensitive or confidential or (as in X & Y) personal and private, relating to children. Where the objective of the BBC, whilst undoubtedly part of a legitimate journalistic investigation, was neither to scrutinise the way in which courts decided cases, nor to enable the public to understand how the justice system worked and decisions were made, the BBC was unable to demonstrate how granting it access to the documents sought would advance the open justice principle.

What open justice means, and the dual purpose that lays behind it, are plainly immutable irrespective of whether an application is being made pursuant to CPR 5.4C(1) or CPR 5.4C(2). However, the approach of the Court to applications under the two regimes is different. This is reflected in the different approach CPR 5.4C takes to the different classes of documents. On the basis of the authorities identified, in particular by Mr McCay in his helpful oral submissions, the relevant principles relating to CPR 5.4C(1) can be summarised as follows:

Cavallari contains a thorough review of the law relating to confidentiality. One of the reasons given by Cockerill J for that approach was that the Mercedes Defendants up to that point had indicated that those responsible for their original approach to designation may have benefitted from a refresher; the other was (it appears, optimistically) to short circuit the type of disputes now before the Court.

This judgment does not repeat that thorough review. The principles relevant to the application before me, drawn from Cavallari and the authorities relied upon both in that case and this, are, instead, summarised as follows: