Reference:  EWHC 3176 (Ch);  4 All ER 113
Court: Chancery Division
Judge: Lewison J
Date of judgment: 6 Dec 2010
Summary: Court file - 'Sealing' file - Form of order sealing file - Access to documents - Non-party - CPR 5.4C - Use in other litigation - Threshold requirements
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Desmond Browne QC - Leading Counsel (Applicant)
Jacob Dean (Applicant)
Victoria Simon-Shore (Claimant)
Instructing Solicitors: Hogan Lovells International LLP for X; Bird & Bird for ABC Ltd; Y in person.
X applied to the court for permission to search the court file in an action for breach of confidence brought by five companies (ABC Ltd) against Y. The action had settled two years earlier with an agreed Tomlin order, made by a Master, incorporating an order prohibiting third party access to the file. The evidence was that apart from the hearing at which that order was made all the hearings in the case were in private. The purpose of X’s application was to locate documents for use by X in other litigation. X relied on Article 6 ECHR, contending that the open justice principle supported access, and required the parties to justify the earlier orders for private hearings. X also said his application was supported by the need to give effect to his Convention rights. ABC Ltd and Y opposed the application.
(1) What was the effect of the order ‘sealing the file’?
(2) Should the court decisions to sit in private at the earlier hearings be revisited?
(3) What test should be applied in deciding whether X should be granted access?
(4) Did X’s Convention rights support his application?
Granting the application in relation to the Master’s final order only:
(1) An order that non-parties may not obtain copies of documents on the court file is not appropriate. There is no power to prohibit access to orders made in public, and apart from these and statements of case non-parties have no right of access without permission anyway.
(2) The court had already decided whether derogations from open justice were necessary in the prior hearings, and the issue did not need to be relitigated.
(3) In such circumstances the open justice principle is barely engaged, if at all, by a non-party application. The appropriate test for access is “strong grounds for believing it is necessary in the interests of justice”: Dian AO v Davis Frankel & Mead  1 WLR 2951 followed.
(4) X’s Convention rights were not engaged. Donald v Ntuli distinguished.
The judgment provides a useful analysis of the rules and practice surrounding ‘sealing’ of the court file, and hearings in private, where the order must record that fact. In an illuminating discussion of open justice at common law and under the ECHR, the Judge noted that English law appears to favour open justice for interim hearings to an extent not required by Article 6 of the Convention.