Public access to court documents and hearings in the English civil courts
08 December 2021
08 December 2021
This guide provides an overview of the open justice principle in the civil courts of England and Wales and the extent of public access to court documents and court proceedings.
Civil court proceedings in England and Wales are, as a general rule, open to the public. In addition, the public can access certain court documents, and apply for further access to other court documents or documents referred to in court. This concept of public access and open justice often comes as a surprise to litigants unfamiliar with the English court system.
In this Quickguide we provide a general overview of the principle of open justice and explain what documents the public have access to and when. We then look at the steps litigants can take to restrict access or preserve confidentiality, and the subsequent use that can be made of documents disclosed in court proceedings.
The English civil court system operates on the basis of open justice. In other words, for justice to be done in the open and for courts at all levels to allow access in accordance with that principle.
In practice this means that, absent exceptional circumstances, the public can access key court documents such as the documents setting out the claim and the defence. In addition, all hearings and the trial are conducted in public. The court may also allow a non-party to inspect certain other documents on the court file, including written submissions, skeleton arguments and any specific documents where it considers inspection is necessary in order to meet the principle of open justice.
It is therefore important for any party to English civil litigation to be prepared for information about the claim to be made public. If confidentiality is an issue, there are protective measures which can be taken although there is no guarantee that the court will allow them or that they will remain in place once the case goes to trial. We discuss these in more detail below.
Once proceedings are started anyone can access details of the claim number, the parties and the legal representatives. Therefore, the fact of litigation is immediately public.
Once proceedings are served and an acknowledgement of service is filed by the defendant(s), non-parties (including the press) will be able to access and obtain copies of the statements of case (the documents setting out the details of the claim, defence, any counterclaim and reply) and judgments or orders made in public (with or without a hearing).
If the matter goes to trial, during the course of the trial they will also have access to the witness statements relied on in court.2
Non-parties are also able to access other documents on the court file with permission of the court. These include documents attached to a statement of case or witness statement, which may contain confidential information, expert reports and skeleton arguments.
In addition, where there has been a hearing in public, the public can request copies of any documents put before the judge and referred to during the hearing.3 This is not limited to the documents which the judge has been asked to read or has said they have read.
Access can also be given to documents that are no longer on the court file, for example, because they were returned after a hearing.4
An applicant will have to explain why they are seeking access and how granting them access will advance the open justice principle. The court will then carry out a fact-specific balancing exercise, weighing up the open justice principle, which is the court's default position, against any risk of harm which disclosure may cause to the judicial process or the legitimate interests of others.
Access granted: Goodley v The Hut Group Ltd  EWHC 1193 (Comm
A journalist was allowed to access a report which had been referred to in open court 6 years previously. The court did not have a copy of the report on their file, but ordered one of the parties to the original proceedings to provide the report. It was held that disclosing a document to a journalist "in pursuit of a serious journalistic story" does advance the open justice principle.
Access refused: Yar, R (On the Application Of) v Secretary of State for Defence  EWHC 3219 (Admin)
The BBC was refused access to two witness statements prepared for trial prior to the hearing of the trial as there was no public policy principle requiring early disclosure, even if the non-party was a journalist.
The court does not have to notify the parties when a request is made. And where access is automatic – because it's a judgment, order or statement of case - parties may never know when a non-party has inspected or obtained a copy of that document.
If you are commencing or defending proceedings, and you want to at least be notified if a non-party is seeking access to the court documents, you should apply for an order restricting access either before or at the time you commence/acknowledge proceedings.
The Civil Procedure Rules do not provide any guidance as to the grounds on which an order restricting access to court documents may be sought. However, the most likely grounds for making an application will be that the party believes that the documents contain or may contain confidential or commercially sensitive information, for example the contract from which the dispute arises contains confidential or price-sensitive information which the parties do not wish to become public and accessible to their competitors.
If the court does make an order restricting access to a statement of case, a non-party may still apply for permission to obtain a copy of the statement of case. The party who obtained the order will be made aware of the application and be given an opportunity to oppose it.
Yes. If there are particular concerns, parties often agree to set up a confidentiality ring, or a "confidentiality club". These work by limiting who can see the evidence received from another party, where and how it is seen, and whether it can be copied or shared. These can often be complex and involve several layers of confidentiality and access to documents. In exceptional circumstances, they can even limit the parties themselves from seeing the documents, limiting access to solicitors and counsel only. Further guidance on the use of a confidentiality ring was provided by Hamblen J (as he then was) in Libyan Investment Authority v Société Générale SA and others  EWHC 550 (Comm) at  to .
However, while the court may be happy with the agreement at an early stage, it may change its mind at trial, particularly if it becomes increasingly difficult to exclude a party itself from a confidentiality club. A recent example at the court's frustration over the inappropriate use of confidentiality restrictions was seen in the decision of Fraser J Bechtel Limited v High Speed Two (HS2) Limited  EWHC 458 (TCC).
Party excluded: McKillen v Misland (Cyprus) Investments Ltd and others  EWHC 1158 (Ch)
Where some confidential information that had been revealed in disclosure was not going to be used as evidence at the trial, the information could remain subject to a confidentiality club which continued to exclude the client for the duration of the trial and beyond.
Yes. The general rule is that hearings are held in public and, in principle, anyone, including the press, can attend a hearing that is held in public. In exceptional circumstances, for example, cases concerning commercially sensitive intellectual property rights or personal financial information, a hearing in private may be permitted. Such cases are however rare; private hearings are seen as a last resort.
A party concerned that confidential information may be revealed in the course of the hearing should consider seeking an order that any confidential material is referred to on paper only and does not enter the public domain. If any confidential information is revealed orally in court by accident, the court can make an appropriate order preventing its reporting. Parties can also apply for certain information to be removed from the transcript of a judgment on grounds of commercial sensitivity.
Private hearing refused: Global Torch Ltd v Apex Global Management Ltd and others  EWCA Civ 819
The Court of Appeal upheld an order refusing an application for a private hearing. The court considered the principle of open justice against the appellants' reputational rights under Article 8 of the ECHR. It concluded that reputational damage was not, of itself, a reason for departing from the open justice principle.
When there is a public hearing, open justice comes into play. Bearing in mind much of the argument and evidence before the court will be in writing, the only way for the public to understand the proceedings may be to grant them access to written material such as written submissions and skeleton arguments. However, the right is not automatic and the third party must show that such access would 'advance' the open justice principle and that they are not seeking access for other reasons, for example, to rely on in other litigation. Serious consideration should therefore be given to volunteering up documents at a hearing.
Documents disclosed in proceedings can only be used in those proceedings, except:
The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
Readers should take legal advice before applying it to specific issues or transactions.