The London Solicitors Litigation Association (“LSLA”) has published its response to the recent consultation by the Civil Procedure Rule Committee to extend the categories of documents that can be obtained by non-parties without permission under CPR 5.4C.

Currently, the list of documents that can be obtained under CPR 5.4C is limited to statements of case (excluding any attachments) and judgments or orders made in public. However, following the Supreme Court’s judgment in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38, the Committee has recommended that this list be extended to include: skeleton arguments; witness statements and affidavits (excluding exhibits or annexes); and expert reports (except medical reports or where a rule or practice direction provides otherwise).

Whilst the LSLA recognises the importance of open justice, it cautions against the potential adverse consequences of expanding the rules in the ways that are currently contemplated. It warns that applications to restrict access to documents by non-parties will become routine, parties will turn to arbitration in order to preserve confidentiality (thereby frustrating the stated goal of enhancing open justice), and that England and Wales risks losing its reputation as a preeminent place for dispute resolution.

The majority of the LSLA’s response concerns the proposal for witness statements and expert reports. As regards skeleton arguments, its view is that they should be made available to non-parties present at the hearing to which the skeleton argument relates, and that the obligation to provide those skeleton arguments “sits properly with the parties to the litigation”.

As for witness evidence and expert reports, the LSLA raises five principal concerns about their widespread availability to non-parties. First, it points to the fact that such evidence is often confidential. Currently this can be managed by a judge on an ad hoc basis (the letter gives the examples of judges reading certain sections of statements in silent or clearing court rooms for parts of a hearing). However, the LSLA suggest that this will not be possible if there is a general right of access to witness statement and expert reports, and instead parties will increasingly make requests to restrict access to documents or draw up confidential and non-confidential versions of documents. Second, it draws attention to the fact that the proposed changes do not make clear at what point in time it is anticipated that non-parties will be entitled to obtain such evidence, raising the possibility of their doing so before it even stands as evidence in chief at a hearing. Third, the LSLA raises concern about the possibility of witness evidence and expert reports being used by non-parties in other proceedings (so-called ‘collateral use’). Fourth, it states that that there is no indication of the process that non-parties would have to follow to obtain such documents, given that they are ordinarily not held by the court, but by the parties themselves. Finally, it points out that there is no mention of who will bear the costs of this process, how costs will be determined, and how they will be paid.

The response ends by the LSLA stating that it is “open to reviewing revised proposals”, but that, in light of the nature of the concerns raised about witness evidence and expert reports, “we presently find it difficult to see how our concerns could be resolved”.

The letter can be read here.