The Court of Appeal has delivered a judgment that provides helpful and important guidance on the law relating to third-party applications for court documents, clarifying what the Court referred to as confusion about how to interpret and apply the landmark judgment of the Supreme Court in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 (“Dring”).

Background

The case arose in the context of separate proceedings brought by a Mr Harron against Rotherham Metropolitan Borough Council (“RMBC”) relating to the child sexual exploitation scandal in Rotherham. As the Court put it, Mr Harron had “embarked on a campaign against RMBC using all the available mechanisms for scrutiny of public bodies”. Ultimately, Mr Harron alleged that RMBC was in contempt of court as a result of its failing to provide a particular document, in breach of its obligations. A First Tier Tribunal concluded that RMBC was, in fact, in contempt of court. However, the Upper Tribunal disagreed and refused to certify the offence.

Watching these proceedings closely was the appellant in the present case, Mr Moss, who was involved in similar proceedings against the Royal Borough of Kingston-upon-Thames. Noting that the Information Commissioner had been joined as a party in the Harron proceedings, Mr Moss was concerned that the Information Commissioner would have an advantage over him in his own case, the hearing for which was due to take place the day before Mr Harron’s hearing at the Upper Tribunal (“UT”).

Therefore, Mr Moss applied for the parties’ written submissions in the Harron case. However, his application was refused, Farbey J concluding that Mr Moss “does not need documents from another case to know the issues in his case” and that “it is not a good or proportionate use of UT’s resources to send written submissions to a non-party who does not need them”.

After attempting – and failing – once again to obtain the written submissions in the Harron case, Mr Moss made a further formal application for “the parties’ written submissions, including the statements of case and skeleton arguments” on the basis that, he said, “I am a campaigner and writer with a particular interest in information rights law and certification/contempt proceedings, and I need copies of the skeleton arguments to see what arguments were deployed in these cases, to enable me to write about them from an informed point of view”.

The judge, Heather Williams J, refused Mr Moss’s application. Among other things, she argued that (1) Mr Moss had not shown a good reason why providing him with the Harron written submissions and skeleton arguments would advance the open justice principle (stating that his reason was “expressed in one sentence only, with no detail given”) and that (2) Mr Moss had failed to explain why the judgment was insufficient to provide him with an informed understanding of the arguments deployed by the parties.

Mr Moss appealed the decision of the court on the basis that, among other things, the judge  had “misunderstood or misconstrued” the Supreme Court’s decision in Dring.

Judgment

Delivering the lead judgment, Lord Justice Coulson sought to draw out the applicable principles from the two leading cases in this area: Dring and R v Guardian News and Media Ltd v City of Westminster Magistrates Court [2012] EWCA Civ 420, remarking that the differences in emphasis between the two cases had given rise to a “certain amount of confusion”.

The principles that the Court identified are as follows:

1. “A non-party does not have the right to see every document referred to in every case…Therefore, to the extent that it is said that there is a ‘default position’ to that effect, it is wrong”.
2. The first step is that a non-party seeking access to a document must “show a good reason for seeking disclosure, and that test needs to be satisfied in every case”. The Court accepted that the threshold is a low one and that “in many or most cases it will easily be cleared”. However, it is nonetheless a threshold and “it needs to be surmounted”. As for the requirement in Dring that a person must explain how granting him access to a document “will advance the open justice principle”, Lord Justice Coulson explained that this simply meant that “the non-party must explain how access will allow him or her to follow the case and understand the reasons why the judge decided the case in a particular way”.
3. If the threshold in the first stage has been cleared and there is a good reason for granting disclosure, the court will then “consider any countervailing factors”. These include matters such as the risk of harm or prejudice that may result from disclosure to a non-party, and what Lady Hale described in Dring as “the practicalities and the proportionality of granting the request”.
4. To the extent that there was any confusion in Lady Hale’s judgment in Dring, the Court made clear that a non-party will not be expected “to demonstrate that there were no countervailing factors, and to show that granting the request would not be impracticable or disproportionate”. As the Court explained, “how could a non-party know that there might be a risk of harm arising from the disclosure of a document that he or she has not even seen?[ …] Countervailing factors and impracticabilities or lack of proportionality will be matters which, at least in the first instance, one would expect an objecting party to raise”.

Applying these principles to the case, the Court allowed Mr Moss’s appeal, finding that the judge rejected Mr Moss’s reason for applying for disclosure “without saying why, and did not set out any justification for her rejection”. The Court accepted that Mr Moss’s reason was scant in detail, but in the light of the low threshold that he had to overcome, it found that he had (just) surmounted it.

The judgment can be read in full here.