Reference:  EWHC 1553 (Comm)
Court: Commercial Court
Judge: Mr Justice Leggatt
Date of judgment: 26 Jun 2017
Summary: Open Justice - Disclosure - Application by a non-party for court documents - Power of the court to provide documents to a non-party - CPR 5.4C - CPR 32.12 - CPR 32.13
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Appearances: Adam Speker KC (Defendant)
Instructing Solicitors: RPC for Mr Ashley; Inhouse for TNL; Mischon de Reya for Mr Blue
Times Newspapers Limited (‘TNL’) applied for permission to obtain from the court file documents said to have been referred to on an interim application for permission to adduce expert evidence, which took place on 7 April 2017, in proceedings brought by Mr Blue against Mr Ashley.
The proceedings relate to whether an oral agreement was made between Mr Blue and Mr Ashley on 24 January 2013 in relation to the share price of Sports Direct International Plc, a company in which Mr Ashley owns and controls the majority of the shares.
Mr Ashley objected to TNL having access to the documents. Mr Blue’s position was neutral.
The documents sought were: witness statements of solicitors served in support of, and in opposition to, the expert evidence application; skeleton arguments served for that application; the expert report; trial witness statements of Mr Blue and Mr Ashley.
Before the hearing the skeleton arguments were provided to TNL.
- Whether there was a power to permit TNL to have access to the solicitors’ witness statements and the expert report. If so, whether they should be provided to them.
- Whether there was power to permit TNL to have access to the trial witness statements. If so, whether they should be provided to them.
- There was power under CPR 5.4C to permit a non-party to have access to the solicitors’ witness statements and the expert report, all of which had been filed at court and were before the court on 7 April 2017. In exercising that power the court had to have regard to the principle of open justice: R (Guardian News & Media Ltd) v Westminster Magistrates’ Court  QB 618 applied. Whilst the expert report was referred to in court, permission was refused for it to be adduced at trial. Where no evidence had been served by TNL to explain why access was needed to it, permission was refused: . As for the solicitors’ witness statements, they had been put in evidence at the April hearing and no evidence or explanation was needed to justify a request for access to them. TNL could obtain them: NAB v Serco Ltd  EWHC 1225 (QB) followed.
- There was power under CPR5.4C to permit a non-party to have access to trial witness statements filed at court before the witness had been called. CPR 32.12 and 32.13 were not a complete code prohibiting a non-party access to witness statements which had been referred to in open court at an earlier hearing but not put in evidence. However, there are good reasons why the court should not generally make witness statements prepared for use at a trial publicly available before the witnesses give evidence:  The Guardian News & Media case did not remove the need for the court to consider the particular circumstances. Here, TNL served no evidence to explain why they needed the witness statements to explain what had occurred at the hearing on 7 April 2017 and the open justice principle was not engaged until the witness gave evidence: . In the circumstances, permission was refused.
The case provides useful further guidance on access to documents in civil proceedings building upon and explaining the leading authority R (Guardian News & Media Ltd) v Westminster Magistrates’ Court  QB 618