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The rules covering access to documents on the court file will change on Monday 2 October 2006. This change will mean that a wider range of documents on the court file will be available to the public without the permission of the court being required. This change has followed intensive lobbying by the media for greater access to court documents to allow it to report on matters proceeding in court.
Under the current rule (CPR 5.4) non-parties only have access (unless they obtain the court's permission) to claim forms (but not documents filed with or attached to them) and judgments or orders made in public. Under the new rule (CPR 5.4C), they will also have access to any statements of case (previously "pleadings") but not any documents filed with or attached to them. This will allow access to all pleadings, including the particulars of claim and the defence. These rules come into play once all defendants have filed an acknowledgment of service or a defence.
The Department of Constitutional Affairs has confirmed that the new rule is retrospective, ie even if a statement of case is filed at court before 2 October, a non-party will be able to see it after 2 October. It would appear, therefore, that even if a case has ended, access will be possible.
It is possible to make an application to the court under the new and old rules to restrict access to the court file by a particular person/group of people or to allow them only to see an edited ("redacted") version (CPR Rule 5.4 (7)). Unfortunately neither rule stipulates the criteria upon which such an application would succeed. However, we would envisage a party being able to restrict access to its statement of case if it contains particularly confidential information, eg a trade secret, or matters relating to national security.
The media will need to remember that allegations made in statements of case are not protected by privilege as they are in court. If repeated in the media, journalists would have to rely on the defence of truth (justification) or fair comment if sued for libel.
It will still be possible to apply to court for permission to receive copies of other documents filed at court by the parties (under CPR 5.4(2)).
Separate rules apply for most insolvency proceedings and arbitration-related claims filed at court. Arbitration proceedings themselves are private and confidential.
The reform is undoubtedly a double-edged sword. Parties who need to set out sensitive or confidential information in their statements of case will be concerned about increased access to the court file. However, the new rules give other interested parties easier access to information about claims which they would be free to use for other purposes such as connected litigation.