Court of Appeal decision on the ability of non-parties to access documents used in court proceedings

On Tuesday 31 July 2018, the Court of Appeal handed down judgment in CIH v AVSGF in a significant decision on the ability of non-parties to access documents used in court proceedings.

The AVSGF applied in April 2017 under CPR 5.4C to obtain copies of documents used in a major High Court trial which had settled beforehand, including all documents disclosed. The application substantially succeeded before Master McCloud.  The High Court then directed that CIH’s appeal should be heard by the Court of Appeal.

The Court of Appeal agreed with CIH’s contention that the “records of the court” for the purposes of CPR 5.4C should be construed narrowly, and allowed the appeal. However, it held that the court’s inherent jurisdiction to permit access to documents in the name of “open justice” is greater than previously thought, and extends to all documents read by the judge and/or read out in open court.

The decision should make parties aware of the real risk that members of the public, including commercial rivals, can access and make use of documents prepared for or disclosed during litigation, even if no judgment is promulgated and even, it seems, if the court itself does not have a copy. The practical and logistical consequences for litigants and the courts are likely to be considerable.

Geraint Webb QC and James Williams of Henderson Chambers appeared for CIH together with Jonathan Swift QC in the Court of Appeal.

A copy of the judgment is available here