Good reason or not? Court of Appeal clarifies rule on non-party access to court documents

The Court of Appeal has confirmed that a non-party does not have a right of access to documents on the court record by default (Derek Moss v The Upper Tribunal).¹ Rather, the non-party must articulate a "good reason" for wishing to obtain the documents, by reference to the principle of open justice (explained below). If the non-party applicant cannot articulate any such good reason, the application must necessarily fail. Coulson LJ's judgment has made clear, however, that the threshold which must be surmounted by the applicant is set low.

If the non-party is able to articulate a "good reason", it will then be for any party opposing the application to raise any countervailing factors for the court's consideration. Some of the more obvious reasons for denying access to court documents include "national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality".² The court will also consider the practicalities and the proportionality of granting the request.³

Ultimately, when determining a non-party's application for access to court documents, the court is required to carry out a "fact-specific balancing exercise" that looks first at the applicant's reasons for seeking the documents, and second at any countervailing factors raised by the opponent.

The topic of non-party access to court documents has returned to the limelight in this decision, following a High Court decision a few months ago in WH Holding Ltd v E20 Stadium LLP [2024] EWHC 817 (Comm). There, it was decided that the appropriate balance between the interests of individuals and the public interest in the maintenance of open justice could be struck by the redaction of the monetary sums from the claim form should a non-party obtain a copy of the statement of case – for a more in-depth analysis of this case, see our article here.

This area of law still seems to be in a phase of calibration. Both of these decisions have been made against the backdrop of the consultation by the Civil Procedure Rules Committee which proposed a new rule CPR 5.4C back in April 2024.⁴ If adopted into the rules, which is still to be decided, the new rule would expand the documents which non-parties may obtain without permission.

Background

In this case, the appellant (Mr Moss) made two unsuccessful applications to the Upper Tribunal in July 2022, in which he sought copies of the parties' written submissions in proceedings where he was a non-party. The proceedings concerned allegations against a local authority by a Mr Harron (the Harron Proceedings), who claimed that the local authority was in contempt of court for failure to provide him with certain documents under the Freedom of Information Act and data protection legislation.

The reason given by the appellant for bringing the first application was that the Information Commissioner (who had been joined to the Harron Proceedings) would have an advantage over the appellant in a similar contempt case in which the appellant was the claimant.⁵ Farbey J refused the application, noting that the Information Commissioner did not intend to take any part in the proceedings involving the appellant. She stated that "it is not a good or proportionate use of UT's resources to send written submission[s] to a non-party who does not need them".

The appellant subsequently made a further application for copies of the parties' submissions in the Harron Proceedings. This time, the appellant stated that the reason for the application was because he was "a campaigner and writer with a particular interest in information rights law and certification/contempt proceedings". The appellant noted that he wished "to see what arguments were deployed in these cases, to enable [him] to write from an informed point of view".

The appellant's second application was also refused, and he appealed to the Court of Appeal.

Court of Appeal's decision: applying the open justice principle

The Court of Appeal overturned the decision below and granted the appellant access to the written submissions in the Harron Proceedings. Coulson LJ found that, despite the brevity of the appellant's reasoning in his application, he had "just" met the low threshold of a "good reason" for seeking the documents by reference to the open justice principle.

The Supreme Court has previously identified two main purposes of the open justice principle in the well-known decision in Dring.⁶ The first is to enable public scrutiny of the way in which courts decide cases; to hold judges to account for the decisions they make and to enable the public to have confidence that they are doing their job properly. The second is to enable the public to understand how the justice system works and why decisions are taken.

The Court of Appeal also found that there were no countervailing factors of harm or proportionality that militated against granting Mr Moss' application. 

The judge found that Farbey J in the Upper Tribunal appeared to have taken into account a number of irrelevant considerations in declining Mr Moss' application for access to the court documents. Such irrelevant considerations included the fact that the appellant had not first requested the documents from the parties to the Harron Proceedings, and that the written submissions sought by the appellant had been summarised by the court in the Harron judgment.

Coulson LJ made the following observation:

"It would be difficult for a member of the public fully to scrutinise the judicial decision-making process in circumstances where he or she only had the judgment to go on, because it may inaccurately summarise the submission or may miss an important point.... Furthermore, if it was the right approach, it would mean that when the [Upper Tribunal] was considering an application for disclosure to non-parties, it would have to consider the underlying judgment and to decide whether or not it accurately summarised the submissions. That would be a further unnecessary and wasteful burden on the [Upper Tribunal]."

Practical takeaways

In terms of practical takeaways from the judgment:

• The Court of Appeal noted that it is sensible but not mandatory to first seek the relevant court documents from the parties to the proceedings. If the documents are not forthcoming, the next step should be an application on notice to the court by the non-party.
• Before relying on the common law principles articulated by the Court of Appeal in this judgment, non-parties should consider whether there may be any right of access to documents under the Civil Procedure Rules. For instance, CPR 5.4C(1) provides non-parties with the right to access statements of case and any judgment or order given or made in public. It is worth noting that the relevant rules are currently being considered in detail by the Civil Procedure Rules Committee, so there may be amendments in this area on the horizon.
• If their application is granted, non-parties must be prepared to pay a reasonable amount to cover the costs associated with providing the documents sought.
• While the threshold for a successful application is low, non-parties will still need to make sure that they clearly articulate a "good reason" for requesting the court documents, by reference to the open justice principle.

Conclusion

The Court of Appeal has helpfully clarified the approach the court will take when considering a non-party's application for access to court documents. In providing this clarification, Coulson LJ noted that the different emphases relating to the relevant principles in previous decisions⁷ "appear to have created a certain amount of confusion".

Additionally, the case emphasises the English courts' commitment to the open justice principle. While non-parties have no "default" right of access to court documents, the threshold that must be met for a successful application is low. In practice, provided the non-party has clearly articulated their reasons for seeking the documents by reference to the open justice principle, the court's decision is likely to come down to whether any countervailing factors of harm or proportionality weigh against provision of the documents.

The judgment is yet another example of the English courts' commitment to transparency and open justice, which is of course a key reason why England & Wales remains a key destination of dispute resolution for international parties.

¹Derek Moss v The Upper Tribunal [2024] EWCA Civ 1414

²Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38, [2020] AC 629 at [46].

³Dring at [47].

⁴See explanatory covering note for the consultation here: https://assets.publishing.service.gov.uk/media/65d70d232ab2b3e0f2759593/court-documents-consultation-cover-note.pdf

⁵Moss v Royal Borough of Kingston-upon-Thames [2022] UKFTT 32.

⁶Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38, [2020] AC 629.

⁷Dring; R v Guardian News and Media Ltd v City of Westminster Magistrates Court [2012] EWCA Civ 420, [2013] QB 618.