The Civil Procedure Rules Committee is consulting on a proposed draft amendment to Civil Procedure Rule (CPR) 5.4, which would allow significantly increased public access to documents with potentially far-reaching impacts.
Under the proposal, the following documents would be accessible by anyone:
- (a) Judgments or orders of the court (other than those given or made in private).
- (b) Claim forms (but not any documents filed with or attached to the claim form or intended to be served with it).
- (c) Other statements of case (but not any documents filed with or attached to the statement of case or intended to be served with it).
- (d) Skeleton arguments.
- (e) Witness statements and affidavits (but not any exhibits or annexures).
- (f) Expert reports (save for limited exceptions, including medical reports).
Of these documents, (a) to (c) can already be obtained by nonparties, but (d) to (f) can currently only be obtained with the court’s permission.
In addition to obtaining qualifying documents from the court, it is proposed that nonparties can request witness statements and skeleton arguments directly from the parties, who will be obliged to provide copies at the start of the hearing (for skeletons) or when the witness is called (for witness statements).
With respect to witness statements, although the proposed amendments are not explicit, nonparties would obtain witness statements in support of interim applications from the court (as these witnesses are rarely called to give evidence orally) and witness statements for trial directly from the parties (as these statements are not filed with the court). Accordingly, trial witness statements would not be disclosable in cases that settle before trial.
The proposal follows the UK Supreme Court’s decision in Cape Intermediate Holdings Ltd v. Dring,[1] which suggested that wider availability of documents might be in the public interest, as it would enable the public to better understand how the justice system works and why decisions have been made.
The proposed rule change envisages that parties can apply to court for various orders requiring documents to be kept confidential, restrict disclosure or allow documents to be redacted.
The changes, if introduced, will have several consequences:
- Witness statements and expert reports will be more likely to be published and quoted, which in some cases may mean more intrusive public scrutiny and comment about their evidence.
- Parties will need to consider proactively making applications to the courts for orders restricting disclosure of commercially confidential information contained in witness statements or expert reports.
- Litigants will be able to obtain and deploy in cross-examination the reports of expert witnesses in previous proceedings.
- There will be additional administrative burden for the courts and for legal teams.
- There will be a material increase in the quantity and quality of documents available for generative artificial intelligence (AI) tools to evaluate and predict strengths, weaknesses and outcomes.
Several important matters are currently unclear:
- Will the rule change apply retrospectively to qualifying documents filed before its introduction? (This currently appears to be the case.)
- How will the proposals be reconciled with the restriction on the collateral use of witness statements by litigants (CPR 32.12)?
- At what stage of proceedings can documents be obtained and for how long after proceedings have ended?
The consultation is open until 8 April 2024.
[1] [2019] UKSC 38.
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