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Disclosure to non-party NGO of evidence relied on at court

07 March 2019

A non-governmental organisation (NGO) has been granted disclosure of evidence relied upon by litigants in concluded judicial review proceedings concerning tobacco packaging (JR). The NGO was not party to the JR.  Much of the evidence, which was of central importance to the JR, had not been read out in open court during the JR, but had been referred to in oral and written submissions and read by the judge in pre- and post-hearing reading. The ruling shows the court using its inherent powers to order disclosure in aid of open justice, even where the documents might fall outside the scope of the non-party access rules in the CPR: British American Tobacco (UK) Ltd & ors, R (on the application of) v Secretary of State for Health [2018] EWHC 3586 (Admin).

The application was made by an NGO for documents that had been relied on in judicial review proceedings by a number of tobacco companies against the Secretary of State for Health, in which the tobacco companies claimed, unsuccessfully, that proposed legislation to standardise packaging of tobacco products was unlawful.  The NGO, Campaign for Tobacco Free Kids (CTFK), applied on the basis that the issues raised in the JR – and the documents sought – had significant implications for the wider global debate about standardised packaging of tobacco products.
Court may order disclosure of court documents to non-parties
CTFK brought its application under 5.4C(2) of the Civil Procedure Rules (CPR) which provides that “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 ...”.  The court also has inherent jurisdiction to order disclosure of documents to give effect to the principle of open justice, even where an application falls outside the scope of the CPR.  This power requires the court to balance the need for open justice with the need for efficiency in legal proceedings. 
Documents were important, but not necessarily referred to in open court
The application was for documents filed by the claimants and the defendants in the JR, including witness statements, expert reports, letters from the World Health Organisation and civil servant submissions following a consultation on the proposed legislation (the Documents). The witness statements and expert reports included numerous exhibits.
The Documents were “of central relevance” to the JR.  All of them had been referred to in the pleadings (which CTFK had obtained separately, under CPR 5.4C(1)) and had been read and considered by the judge.  The judge (Green J, who heard both the JR and the application) acknowledged that, increasingly, given the volume of material in modern litigation, judges are required (or invited) to read important documents outside court.  Therefore, documents that are relied upon are not necessarily read aloud in court (as was the case in relation to the Documents, since the volume of evidence in the JR was vast).  Such documents may nevertheless be integral to the proceedings and should be treated accordingly.  In relation to exhibits, the court relied on Cape Intermediate Holdings v Dring1 in which the Court of Appeal said there is no general right of access to such exhibits, simply because they are attached or referred to in witness statements or expert reports, but that it would be different if they were read, or treated as read, in open court. (Cape is currently on appeal at the Supreme Court.)
Disclosure granted 
The application was granted under the court’s inherent jurisdiction. The key reason was to give effect to the principle of open justice. CPR 5.4C(2) was not considered (the Secretary of State had opposed the application on the basis that the Documents sought did not fall within CPR 5.4C(2)). The judge described as “immaterial” the fact that the Documents might not fall within the scope of the CPR and held that, in circumstances where the Documents were relied upon in the underlying proceedings and the applicant had an unfettered right to attend the hearing, it was entitled to the Documents. 
A rebuttable presumption in favour of disclosure
In such circumstances, the court’s power is effectively subject to a rebuttable presumption in favour of the applicant: “documents should be made available absent some good reason to the contrary.”  Good reasons may exist in some cases, but those will be the exception rather than the rule.  By way of example, the judge acknowledged that his ruling may have been different if the documents had been treated as subject to an overriding security or confidentiality claim in the JR.  
Although the judge concluded that CTFK should be entitled to the Documents “without more”, he set out a number of reasons which, to the extent they were germane, were “compelling”.  These included: (i) the Documents were all referred to in pleadings, evidence and submissions before the court and they were all read and taken into consideration by him in preparing the judgment following the JR; (ii) the Documents raised issues relating to public safety and health; (iii) the issue of standardised packing is an issue of broad continuing importance to the international community; (iv) conclusions arrived at in the JR judgment about this evidence are better understood with the actual evidence itself being available in the public domain; and (v) wider transparency might thereby assist other interested persons, countries and courts to form their own views about the merits or otherwise of the competing arguments.
This case confirms that, when dealing with third party applications of this kind, the court’s focus will be to uphold the principle of open justice by enabling transparency. Its rationale is that “transparency” goes beyond allowing the public access to the court room; it is also about providing those who need to understand how justice is performed with the information which facilitates that understanding.  It may therefore use its inherent jurisdiction to order disclosure even when outside the scope of the CPR.
Whilst the decision is plainly helpful for non-parties with an interest in court documents, it is important to note that there were several features of this case that may have coloured the judge’s decision to allow disclosure. First, the Documents were significant in the JR, therefore this approach may not apply to applications for peripheral documents.  Secondly, the judge appeared to attach importance to the fact that the applicant in this case was an NGO; in the broader judicial context, NGOs and pressure groups play an important public function in that they bring pressure to bear on particular issues. Lastly, the fact the underlying proceedings were judicial review proceedings was important as the court said the principle of open justice applies “forcefully” where decisions of public bodies are in issue.
On the other hand, the judgment serves as a reminder that documents relied upon in court are potentially publically available, even where they are not read aloud.  To the extent a party to litigation is sensitive about third parties obtaining copies of certain documents (and subject to that party’s disclosure obligations) careful thought should be given to whether and to what extent reliance should be placed on those documents.
1 [2018] EWCA Civ 1795.
Further information
This case summary is part of the Allen & Overy Litigation and Dispute Resolution Review, a monthly publication.  If you wish to receive this publication, please contact Amy Edwards,