In an article recently published on our website here, our Commercial Litigation team examined the question of what court documents a non-party can access – the answer to which, according to the Supreme Court in the recent case of Cape Intermediate Holdings Ltd v Dring, is “potentially everything”.
The principle of open justice
The basis of this decision is the principle of open justice and the consequent inherent jurisdiction of all courts and tribunals to allow non-parties access to court documents. In this context, “court documents” are not limited to the parties’ written submissions and arguments, but instead extend to all documents placed before the court and referred to during a hearing.
However, there is not an absolute right of access to all documents for non-parties and, in the event of a request to access documents, the court must conduct a fact-specific balancing exercise, and may deny access on grounds such as national security, protection of trade secrets or commercial confidentiality.
What will this decision mean for employment tribunals?
In reaching its decision, the Supreme Court referred to Rule 5.4C of the Civil Procedure Rules (“CPR”), which allows non-parties to obtain certain court documents as of right. Although the CPR does not specifically apply to employment tribunals (which operate instead according to the Employment Tribunal Procedure Rules (“ETPR”)), the principle of open justice does apply to both.
Non-party access to tribunal documents is provided for at Rule 44 of the ETPR, which requires that written witness statements must be available for inspection by members of the public who attend a hearing in the employment tribunal, unless certain privacy or national security rules apply.
Although not directly applicable, the Supreme Court’s judgment in Cape Intermediate Holdings Ltd v Dring is likely to broaden the existing rights of non-parties to request documents from employment tribunals.
In practice, this could mean that employment tribunals may have to make certain documents in addition to witness statements available to non-parties, subject to the balancing exercise, which could include such things as correspondence on the tribunal’s file or documents in the hearing bundle.
This case serves as a reminder to parties in an employment dispute that written witness statements will be available for inspection by members of the public attending a hearing, which could include the press or other employees of the Respondent. Both employers and employees should be mindful of this during the witness statement drafting process and in the run up to the hearing.
It remains to be seen what the practical impact of this ruling will be in the employment tribunals where a document access request is made by a non-party. However, it should be noted that employment disputes which progress to the Court of Appeal or Supreme Court would be subject to the CPR in any event, and to the potentially extensive non-party document access rights addressed in this case.