Principles for operation of inherent jurisdiction to order release
Dring v Cape Intermediate Holdings Ltd  EWHC 1873 (QB) (16 July 2020), Picken J is the next stage in the long-running case on release of court material to a non-party. So far it has gone from a High Court Master and proceeded to the Supreme Court as Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK)  UKSC 38,  3 WLR 429 (29 July 2019). The Supreme Court had agreed with the decision Court of Appeal which had allowed a leap-frog appeal from the Master. The Supreme Court restored the Court of Appeal order that the question of certain documents should be restored to Picken J for him to say what should be released to Asbestos Victims Support Groups Forum UK (‘the forum’) where a case had been settled after trial before him, but before judgment.
The Cape Intermediate v Dring case throughout has turned on what documents can be released to Mr Dring on behalf of the Forum, in the original proceedings where asbestosis sufferers had settled their litigation with Cape Intermediate. On behalf of others affected by asbestosis the Forum wanted to see documents which had been produced in court. The master ordered a more or less blanket release. The Court of Appeal agreed that the High Court had an inherent discretion to order release of documents but said the question should be referred back to Picken J for him to decide how that discretion should be exercised.
The issue arose in the Cape Intermediate v Dring case under Civil Procedure Rules 1998, r 5.4C(2) which says:
'(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.'
On what basis (if any) should the court permit release of court material to a non-party given that the Court of Appeal and Supreme Court had held that the High Court has a discretion to do so? Picken J held that the question turned on whether release under the inherent jurisdiction would ‘advance the open justice principle’ (see ).
Advance of the open justice principle
He considered that the Forum’s application in this case was one where an interest group merely wanted to see documents based on a general enquiry by them. This was not enough, he thought, for him to say that on their application the open justice principle was advanced. He explained:
' 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 v The Charity Commission  UKSC 20,  1 AC 455] or [A v British Broadcasting Corporation  UKSC 25,  1 AC 588]) can have contemplated would justify an application under the inherent jurisdiction.'
The lead case on release of documents, commented on extensively by Lady Hale in the Supreme Court in Cape Intermediate v Dring (above), is R (Guardian News and Media Ltd) v City of Westminster Magistrates' Court  EWCA Civ 420,  QB 618 (3 April 2012) (Guardian v Westminster) where Toulson LJ explained the open justice principle and order release of documents to the Guardian in relation to a magistrates’ court extradition hearing to enable the journalist the better to understand what had happened in court.
In passages quoted by Picken J at  to  of his judgment, and in comment on Guardian v Westminster Lady Hale in the Supreme Court said:
' … There can be no doubt at all that the court rules are not exhaustive of the circumstances in which non-parties may be given access to court documents. They are a minimum and of course it is for a person seeking to persuade the court to allow access outside the rules to show a good case for doing so. However, case after case has recognised that the guiding principle is the need for justice to be done in the open and that courts at all levels have an inherent jurisdiction to allow access in accordance with that principle. Furthermore, the open justice principle is applicable throughout the United Kingdom, even though the court rules may be different.'
Lady Hale continued
' So what were those principles? The purpose of open justice ‘is not simply to deter impropriety or sloppiness by the judge hearing the case. It is wider. It is to enable the public to understand and scrutinise the justice system of which the courts are the administrators’ (para 79 of Guardian v Westminster). The practice of the courts was not frozen (para 80)…. The time had come to acknowledge that public access to documents referred to in open court was necessary (para 83). Requiring them to be read out would be to defeat the purpose of making hearings more efficient. Stating that they should be treated as if read out was merely a formal device for allowing access.'
The rules which govern family courts are not in quite the same terms as Civil Procedure Rules 1998. Family Procedure Rules 2010, r 29.12(1) says simply that a document filed at court shall be open to inspection (and, by extension, to copying by ‘any person’) if permission of the court is given. Subject to appropriate privacy for family proceedings it is likely that the same ‘advance of the open justice principle’ approach to the grant of permission will apply to such proceedings as to any other; and that the principles identified by Picken J and the earlier cases Dring v Cape Intermediate (especially in Cape Intermediate v Dring in the Supreme Court and Guardian v Westminster) will apply in family cases.