This blog post is by James Beeton of 12 King’s Bench Walk.
In a decision delivered yesterday (5 December 2017), Master McCloud determined that all disclosure documents referred to in the major asbestos product liability trial of Concept 70 & Others v Cape International Holdings Ltd (which took place over the course of several weeks earlier this year before Picken J) could be made publicly available. Permission to appeal was refused, although it remains to be seen whether a further application in this respect will follow.
The decision, involving an application described as ‘unprecedented in scope’, has very significant implications for asbestos-related claims involving Cape specifically, the provenance and impact of TDN13 in mesothelioma claims generally, and broader historical knowledge arguments in respect of the asbestos industry as a whole.
It also contains a fascinating analysis of the principles of open justice and the balancing of legitimate interests in the context of the court’s power to supply court documents to non-parties under CPR r.5.4C(2). The reliance on statements of principle in the recent Employment Tribunal fees decision of R (On the Application of UNISON) v Lord Chancellor  UKSC 51 in particular retains that case’s approach of expressly grounding a judicial decision within its broader constitutional context.
Concept 70 & Others v Cape International Holdings Ltd (considered in an earlier article on this blog here) involved subrogated claims brought on behalf of insurers that had settled employers’ liability claims arising out of workers’ exposure to asbestos between 1955 and 1980. The insurers sought contributions in respect of the settled claims from Cape, which was the manufacturer of asbestos products including Asbestolux and Marinite.
Unusually – and probably ‘uniquely in the history of asbestos litigation’ – the disclosure exercise involved putting to together extensive quantities of historical material and records relating to asbestos safety and regulation in a way which would have been disproportionate in a run-of-the-mill asbestos claim. This exercise had been justified by the high value of the claim.
At the conclusion of the trial, but before the judge was able to deliver a reserved judgment, a settlement was reached. According to the applicant (a non-party), it had been communicated to them that a term of the settlement was that many of Cape’s disclosure documents were to be imminently destroyed.
In Asbestos Victims Support Groups Forum UK v (1) Concept 70 Limited & Others, (2) Cape Intermediate Holdings Plc  EWHC 811 Master McCloud granted a without notice application by the applicant to order that documents filed at court during the course of the compromised litigation concerned with asbestos exposure be preserved pending a further application for disclosure under CPR r.5.4C.
The parties in the compromised litigation were subsequently given permission to be heard at the substantive application hearing on condition that they might not seek any order for costs against the applicant (Dring v Cape Distribution Ltd and Others  EWHC 2103 (QB)).
The instant application therefore concerned Mr Dring’s request for access to the trial bundles, statements of case, skeleton arguments, submissions and daily transcripts provided to the judge in the compromised litigation. The trial bundles included the totality of the parties’ disclosure documents whether or not deployed at trial – including, notably, a digital bundle of documents which had been made available but not referred to at trial.
Decision Part 1: Principle, Jurisdiction and Process
The first part of Master McCloud’s judgment dealt with the legal issues relating to matters of principle, jurisdiction and process.
She began by quoting Lord Diplock (who was himself quoting from Jeremy Bentham and Lord Shaw of Dunfermline) in Home Office v Harman  AC 280 303C:
‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial.’
When delivering her conclusions on Part 1, Master McCloud referred extensively to Lord Reed’s judgment in the recent decision of R (On the Application of UNISON) v Lord Chancellor  UKSC 51, noting that the ability of the public to access records of court proceedings ‘engages constitutional notions of open access to the courts in ways which are relevantly similar to but not identical with the direct form of access to court considered in UNISON. In particular:
- The right of access to court considered in UNISON is inherent in the rule of law.
- It seems to me that openness of justice, of the sort considered here fosters the scrutiny of the courts by the public, protects the integrity of the court process and assists the development of the law and legal knowledge. It thereby supports the practical effectiveness of the right of access to court.
- The courts do not merely provide a public service to the ‘users’ who appear before them. Rather, previous cases form the basis of the advice given to those whose cases are now before the courts, or who need to be advised as to the basis on which their claim might fairly be settled, or who need to be advised that their case is hopeless.
- Although it is often desirable that claims arising out of alleged breaches of the law should be resolved by negotiation or mediation, those procedures can only work fairly and properly if they are back up by the knowledge on both sides that a fair and just system of adjudication will be available if they fail.’
The result was that ‘parties submitting to the jurisdiction do not have full sovereignty to determine simply by private agreement between themselves the extent to which the public may be made aware of any aspect of the proceedings before the court.’
The default position was the possibility that material deployed in court or filed upon the records of the court would form part of the corpus of material which may be deployed in other cases, used for legal advice, or be subject to discussion by academics, journalists or Parliament.
Master McCloud then considered the authorities on CPR r.5.4C(2) (on which the application was based) 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, or communication between a court and a party of another person.
Her conclusions were as follow:
- CPR 5.4C is the primary means by which the court’s common law power to allow access to documents to the public from the court record is administered but the common law is the master and not the servant of the rules.
- Where documents are filed on the record of the court then they fall within the scope of CPR 5.4C(2). (If documents are removed from court, Blue and Ashley v Times Newspapers Ltd  EWHC 1553 (Comm.) may provide a basis for saying that the court can require them to be returned but in this instance the documents had not in fact been removed from court).
- Documents filed on the record of the court and which are read or treated as read in court are subject to a default position in favour of the principle of open justice if the applicant has a legitimate interest.
- Where the applicant has a legitimate interest then the court must still consider the balance exercise in relation to any harm to other parties’ legitimate interests when deciding whether to allow access.
- Documents on the records of the court which are not read or treated as read are subject to a more stringent test namely that there must be strong grounds for thinking that access is necessary in the interests of justice.
- Served documents not on the records of the court do not fall within rule 5.4C but may be disclosed under the court’s common law powers. Gio and Nestec support a narrow approach to exercising that jurisdiction where documents are sought which fall outside rule 5.4C. Blue and Ashley draws the scope of the power widely but also approaches their exercise cautiously.
Master McCloud rejected Cape’s argument that the open justice principle was not engaged where a case had settled before judgment. She considered that the point had already been determined by Bean J in NAB v Serco  EWHC 1255 when he commented that ‘[t]he public interest is not confined to cases where the court has given judgment and it is sought to see whether the underlying documents provide further illumination of the judgment. It may be just as significant to discover why a case settled.’
Cape argued that, since the CPR at r. 39.5 referred to ‘bundles’ being filed, this did not imply that the documents within them were filed. But that point was given short shrift by Master McCloud: ‘[t]hat seems to me an unrealistic approach: bundles are simply collections of documents and when a bundle is filed necessarily so are the documents within it.’
However, a bundle made available only as a digital resource in court had not been filed since ‘the basic position as to filing at court is, absent a Practice Direction in accordance with rule 5.5, a paper exercise.’
Master McCloud considered that the written submissions and skeleton arguments, which had been retained in court at the end of the trial and held together with the court files rather than being handed back to the advocates, had in the circumstances become documents filed on the records of the court for at least so long as they remained at court.
Once a document had been sufficiently deployed in court to give rise to the starting point of openness, the applicant still had to show a legitimate interest and thereafter to consider the balancing exercise in relation to the possible harmful effects to others’ legitimate interests. The scope of the legitimacy test was a broad one and encompassed –
- The promotion of academic consideration as to the science and history of asbestos and asbestolux exposure and production.
- Improving the understanding of the genesis and legitimacy of TDN13 and any industry lobbying leading to it in the 1960s and 1970s.
- Understanding the industrial history of Cape and its development of knowledge of asbestos safety.
- Understanding the industrial history of Cape and its development of knowledge of asbestos safety.
- Clarifying the extent to which Cape was or was not responsible for product safety issues arising from the handling of asbestolux boards.
- Assisting court claims and the provision of advice to asbestos disease suffers.
Decision Part 2: Standing, Specificity and Balancing
The second part of Master McCloud’s judgment considered the standing of the applicant, the specificity of the application and the balancing exercise between the competing interests involved.
She began by rejecting Cape’s argument that the initial application had been a nullity since the original applicant (the Asbestos Victims Support Groups Forum UK) had no legal personality: Mr Dring had since been substituted and the defect cured.
She also rejected Cape’s argument that the application was too vague. The broad classes of documents sought had been sufficiently identified and comprised, if more specificity were needed, ‘the ones presently occupying several metres of shelf space and a hard disk in my courtroom.’ A complex or detail-heavy approach to the request for documents would risk requiring an excessive use of precious court resources.
Master McCloud then moved on to the more difficult issue of the balancing exercise. By contrast to broad tone of her earlier quote from Lord Diplock, she began this section of the judgment by commenting that ‘[t]he constitutional right of access to a court would be unacceptably impaired if the act of going to court, perhaps having no choice other than to do so in some instances, necessarily entailed that every detail of every case was available to the public.’
In cases involving trade secrets, intimate personal details, libels and falsehoods, for example, it could be seen how the court’s prime duty under the overriding objective to do justice would sometimes override the constitutional right to openness of court process.
However, Master McCloud noted the ‘valid concern’ of the applicant that directing the material in the compromised case not to be accessible by the public would risk the courts proceeding in future cases without the parties being in a position to draw that material to the judge’s attention when appropriate. This related closely back to the point that the courts were ‘not a private dispute resolution forum but rather they play a public role in informing other cases both as to law and procedure and… as to facts and knowledge in specialist areas.’
Cape’s argument that there was a public benefit in ensuring that settlements reached by the parties were upheld was met by the fact that means already existed to ensure that sensitive material could be ventilated in private rather than in public – it was telling that the whole trial took place without such orders being sought. The fact that the terms of the eventual settlement provided for confidentiality was not relevant since it was not for the parties to dictate to the court which documents could and could not be publicised following the conclusion of the case.
Cape’s offer to undertake to retain the documents so that they remained available as a target for disclosure applications in future cases did not go to the issue: open justice was aimed at scrutiny and understanding of court proceedings, decisions, process and settlement and the holding of judges to account; by contrast, disclosure did not by itself imply any degree of later public access and so could not satisfy this aim.
Finally, it was noted that Cape had not taken the opportunity to direct Master McCloud to any examples of specific harm to their interests which would be caused by the publication of specific documents or classes of documents sought.
Master McCloud therefore ordered disclosure of:
- The witness statements including exhibits
- Expert reports
- Disclosed documents relied on by the parties at trial
- Written submissions and skeletons
- Statements of case to include requests for further information and answers if contained in the bundles relied on at trial
However, in relation to documents which are unfiled and undeployed in court – such as those on a digital bundle of documents made available but not referred to at trial – while the court had a common law power to direct disclosure, it was necessary to adopt a cautious approach: special circumstances were required before disclosure would be ordered.
In this case, there were no such special circumstances for ordering disclosure of the digital bundle and it would therefore be excluded from the disclosure order. The openness principle would only apply to documents which had played a role in the proceedings. The disclosure statements in the compromised proceedings were therefore also excluded on the basis that their disclosure would undermine the decision not to order disclosure of the contents of the digital bundle.
Permission to Appeal
Master McCloud addressed this of her own motion, holding that there was no real prospect of a successful appeal and no other good reason for an appeal. Permission was therefore denied. Master McCloud indicated that if an appeal were to be heard then it ought to be before the Court of Appeal due to the need for expedition in mesothelioma claims and the importance of the documents forming the basis of the judgment.