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The disclosure of Court documents in judicial review proceedings to non-parties

R (British American Tobacco (UK) Ltd) v Secretary of State for Health [2018] EWHC 3586 (Admin)In a week in which the UK Supreme Court is considering the rights of third parties to access court

R (British American Tobacco (UK) Ltd) v Secretary of State for Health [2018] EWHC 3586 (Admin)

In a week in which the UK Supreme Court is considering the rights of third parties to access court documents, we consider a recent judgment on the issue in the high profile tobacco 'plain packaging' judicial review.

The Civil Procedure Rules (CPR) grant non-parties access to particular Court documents (namely Statements of Case and Court Orders) as of right. All other Court documents can be accessed only at the discretion of the Court. The Courts have recently exhibited an inclination to exercise the discretion favourably to those seeking disclosure. The recent BAT decision has the potential to open the door for non-parties even further, particularly in judicial review proceedings of public importance.

Various companies in the tobacco industry sought judicial review of the Standardised Packaging of Tobacco Products Regulations 2015, which imposed limits on the advertising on the packaging of tobacco products. The tobacco companies and the Secretary of State for Health each relied upon their own competing expert evidence that set out economic analyses of the effects of the impugned legislation.  The experts' reports were central to the issues considered in the claim and were referred to extensively during the hearings.

Campaign for Tobacco Free Kids (CTFK) filed an application to the Court seeking access to both experts' reports. 5.4(C)(1) of the CPR grants non-parties to a proceeding access to orders made by the Court and the Statements of Case filed by the parties. CTFK had already accessed Statements of Facts and Grounds as of right pursuant to 5.4(C)(1) of the CPR. To access the experts' reports, CTFK needed to apply under CPR 5.4(C)(2) for the court to exercise its discretion to grant disclosure. The Secretary of State opposed CTFK's application on the basis that the court did not have power to make such an order since the documents were not "court records" for the purposes of CPR5.4(C)(2). The Court granted CTFK access to the experts' report that it sought.

Mr Justice Green explained that 5.4(C) of the CPR is an expression of the broader notion of open justice, which is an unwritten constitutional principle. As a constitutional principle, the Courts have inherent jurisdiction to determine how it is to be applied. Thus, the court has power to grant such disclosure independent of the provisions of the CPR, which render irrelevant the Secretary of State's argument that the documents did not fall within the scope of CPR5.4(C).

Green LJ observed that Courts are increasingly relying on documents that it reviews prior to the relevant hearing and does not have read in open Court. That tendency is against the notion of open justice. Observers in the court cannot properly follow the hearing and the press face difficulties in accurately reporting on it. In these judicial review proceedings, the expert evidence was referred to in the pleadings, evidence and submissions, but not read during open Court.

Importantly, the judge remarked that in cases such as that at hand, the principle of open justice means that the discretion should be exercised presumptively in favour of disclosure. That the documents directly related to an issue of public importance further strengthened the weight of the presumption. The economic analysis in the expert evidence and the consequent conclusions made by the Court had far wider implications than the judicial review matter for which they were filed.

Clearly, the right to access Court documents is not absolute. For example, disclosure may be refused to protect individuals from harm or to avoid a miscarriage of justice in a future trial. In respect of CTFK's application, there was no such reason to refuse disclosure. The absence of any countervailing reason was the key rationale supporting his order in favour of disclosure.

Although the court's reasoning and the basis for a more open-handed approach to access is persuasive – particularly in applications for judicial review, where the court only rarely hears live evidence – it should be noted that on 18 and 19 February the Supreme Court is hearing an appeal in Cape v Dring on the same issue. Parties and litigators alike will be greatly assisted by further principled guidance from the Justices.

Written by Michael McCagh, Solicitor

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