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NGO granted access to court documents by English High Court

American non-governmental organisation (NGO) the Campaign for Tobacco Free Kids (CTFK) should be granted access to various documents generated in the context of a legal challenge to tobacco packaging rules, despite not being a party to the case, the High Court in England has ruled.14 Jan 2019

The decision should not, however, be taken by non-parties as a 'carte blanche' to their obtaining documents such as expert reports, witness statements and the detailed submissions of parties to litigation, reflecting as it does the court's view of the importance of the role played by campaigning organisations such as CTFK in enforcing legal rights in court and the discretion of the court, according to commercial litigation expert Charlotte Evenden of Pinsent Masons, the law firm behind Out-Law.com.

The judgment, handed down shortly before Christmas, comes just months after the Court of Appeal restricted Asbestos Victims Support Group's rights as a third party to access to documents from court records. Rule 5.4C of the Civil Procedure Rules (CPRs) gives non-parties a limited right to access "copies of statements of case and judgments or orders given or made in public, but not until an acknowledgement of service or defence has been filed". The court also has an "inherent jurisdiction" to allow wider access, but this is also subject to limits.

"An important factor in this latest judgment is the value that the court considered non-party disclosure had for issues of public safety and health, not just in the immediate jurisdiction but also within the international community," Evenden said. "Particularly in the context of the tobacco industry, the court thought it important for transparency to be given so as to assist other interested persons, countries and courts to form their own views about the merits or otherwise of standardised tobacco packaging."

CTFK applied to the English courts under CPR 5.4C for disclosure of certain documents relied upon by the parties in a series of unsuccessful claims for judicial review of the tobacco plain packaging legislation, brought by the tobacco industry and tobacco paper manufacturers. CTFK is an NGO based in Washington DC, which promotes tobacco control measures and legislation worldwide with a particular focus on lower and middle-income countries.

In its application, CTFK argued that the courts' analysis and conclusions in these cases had significant wider implications for the adoption and implementation of standardised tobacco packaging around the world. It said that disclosure would "aid the understanding of the legal and factual issues surrounding the question of standardised packaging and would promote debate".

CTFK's application went beyond the 'records of the court' provided for under CPR 5.4C to include expert reports, witness statements, various letters provided in evidence and the full detailed submissions of the UK health secretary. Not all of these documents were read out in open court, but the judge had been invited to read all the documents in court, or outside court.

In deciding to grant the application, Lord Justice Green noted that not all the documents sought fell under CPR 5.4C, as clarified by the Asbestos Victims Support Group case. However, he noted his" inherent jurisdiction" to order disclosure, based on the principle of open justice, unless there was a compelling reason otherwise.

"In this case the applicant did not attend the hearing but would have had an unfettered right to be present and to listen to the argument," he said. "This is not a case where anyone raised an argument during the hearing to the effect that any of the material now being sought was subject to some overriding security, confidentiality or other claim which served to limit its disclosure to the public."

"In such circumstances it is difficult to resist the conclusion that having asked, the applicant should be entitled, without more, to the documents in question. But to the extent that the reasons are germane they are in this case compelling. The point of departure is that the documents should be made available absent some good reason to the contrary. There are no such reasons here," he said.

The judge did, however, go on to summarise the reasons in favour of disclosure in this particular case. They included the fact that the documents were all read and taken into consideration by the judge; that they raised issues relating to public safety and health; and that the issue of standardised packaging was "an issue of broad continuing importance to the international community".

"The approach that I adopt is also consistent with that adopted in the US where the courts, in the wake of litigation there concerning the alleged suppression by the tobacco industry of relevant health information, ordered the disclosure into the public domain of vast amounts of internal tobacco industry documents," he said. "All of this (exceeding circa 50 million documents) is now searchable online facilitated by means of a practical guide produced for that purpose by the [World Health Organisation]."

However, Evenden noted that the court's power to order disclosure of documents to a third party was an "entirely discretionary" one, which "will proceed to be dealt with on a case-by-case basis".

"The judgment recognises that transparency is not absolute and there are instances where anonymity or confidentiality is necessary," she said. "The court retains its supervisory power to decide not to grant disclosure."

Commercial litigation expert Michael Fenn of Pinsent Masons said  that "since the Asbestos Victims Support Group case has now been granted permission to appeal to the Supreme Court, this is not the last we will hear on the matter of non-party access to court documents. Nonetheless, for parties particularly concerned about privacy in litigation, legal advice should be sought and consideration given to confidential ways of resolving disputes, such as arbitration or mediation, as well to steps which can be taken in litigation to protect the confidentiality of documents and other sensitive information before the court.".