Protecting commercial secrets: High Court allows redaction of documents for non-party access under CPR 5.4C

In WH Holding Ltd v E20 Stadium LLP [2024] EWHC 817 (Comm), the High Court examined the rights of non-parties to obtain copies of statements of case under CPR 5.4C. It 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.

Background

The claimant, WH Holding Ltd, sought an order under CPR 5.4C(4) to restrict non-parties from obtaining a copy of its statements of case without further order, on the basis that the claim form and accompanying document with further details, contained commercially sensitive and confidential information.

The default rule under CPR 5.4C(1) is that a non-party may obtain from court records a copy of a statement of case, but not the documents attached to it, without permission from the court.

Under CPR 5.4C(4), the court may, on the application of a party or of any person identified in a statement of case:

1. order that a non-party may not obtain a copy of a statement of case under paragraph (1);
2. restrict the persons or classes of persons who may obtain a copy of a statement of case;
3. order that persons or classes of persons may only obtain a copy of a statement of case if it is edited in accordance with the directions of the court; or
4. make such other order as it thinks fit.

Decision

HHJ Pelling KC emphasised the importance of the open justice principle when considering applications under CPR 5.4C(4), the purpose of which was to facilitate public scrutiny of the justice system by permitting open access to statements of case of litigants using the court.

The claimant's argument that the open justice principle had not been engaged as there had been, at the relevant point in time, no judicial engagement with the claim was rejected by the court. The only "jurisdictional trigger" required by CPR 5.4C was the filing of an acknowledgment of service by the defendant, a requirement which had been met in these proceedings. Any other "fetter" to the right of the public to obtain a copy of statements of case would "potentially, at least, result in obviously arbitrary and irrational outcomes" based on whether an application had been heard in court.

In considering the basis on which a court could make an order under CPR 5.4C, the judge concluded that the "probably correct approach" was that:

1. CPR 5.4C(1) establishes a "very clear default principle".
2. Departure from this would require "clear justification".
3. Circumstances which justify a departure are "acutely fact sensitive" but are likely to include one or more of the matters in CPR 39.2(3)(a) to (g)¹.
4. Given the underlying reasons for the default principle, departure should only happen if and to the extent necessary to secure the proper administration of justice and/or protection of the applicant's interests.
5. Any intervention must be "no more than is proportionate; that is, the minimum interference with the general rule necessary to protect the interests of the applicant."

Subject to these qualifications, if a statement of case contains confidential material or is, by its nature, confidential, the court may make a CPR 5.4C(4) order.

The claim form in these proceedings contained monetary sums which constituted sensitive private financial information relating to specified individuals - the court did not provide any more specific details as the judgment was being delivered in open court. The court was therefore concerned to find an appropriate balance between the interests of the individuals identified and the interests of the public in the maintenance of open justice.  It found that balance 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, an order which it had jurisdiction to make applying CPR r.5.4C(4)(c) and/or (d). The court further noted such an order was proportionate in the result itself, but also because it would be open to any non-party to apply for access to the unredacted document on notice to the claimant under CPR r.5.4C(6).

Comment

This decision shows that the court is likely to interpret CPR 5.4C in a considered manner, balancing the interests of the relevant parties with the principle of open justice. Should the statement of case contain confidential or sensitive information, the court may order that this should be redacted selectively, but a broad order restricting the public's access to such documents may not be easily granted.

This finely balanced decision is of particular interest in the context of last year's consultation by the Civil Procedure Rules Committee (CPRC) proposing a new CPR 5.4C² which would significantly expand the documents which non-parties may obtain from the court file without permission, to include skeleton arguments, witness statements and affidavits (excluding exhibits or annexures) and expert reports³. That proposal⁴ would see skeleton arguments being made available from the court file once the relevant hearing has started⁵, witness statements once the relevant witness has been called, and expert reports once the relevant expert has been called or the report has been deployed in court. The consultation was open until 8 April 2024, and further information from the CPRC is expected in due course.

Such revisions, if they become part of the civil procedure rules, may trigger litigants to take further steps to protect their confidentiality and that of their witnesses, such as by seeking orders to restrict rights under CPR 5.4C(1) and responding to applications filed by non-parties seeking copies of these documents. The instant case illustrates the tools available to the court in striking a balance between the interests of confidentiality and that of open justice, whether or not public access to the court file is expanded in the limited ways proposed by the CPRC.