A View From The Exchange: has the pursuit of open justice gone too far? 

The Civil Procedure Rule Committee recently signalled a possible U-turn on its proposed introduction of a revised CPR 5.4C (the rule which allows non-parties, including journalists, access to court documents). The proposals, which were subject to consultation from February to April, would significantly increase the range of court documents available to non-parties in litigation. The CPRC has now revealed that its proposed revised rule 5.4C requires a rethink due to criticisms received under the consultation. This is unsurprising given the commercial and reputational sensitives of parties engaged in litigation. 

What would the proposed new CPR 5.4C mean for litigants?

As currently drafted, revised rule 5.4C would, for the first time, allow members of the public to access parties' witness statements, expert reports and skeleton arguments without the court's consent. This would mark a departure from the status quo, where documents available to non-parties without consent are limited to statements of case and judgments or orders made in public. 

The proposed reforms are intended to expand the open justice principle and flow from the UK Supreme Court's 2019 judgment in Cape -v- Dring [2019] UKSC 38.

Criticisms of the proposals 

The proposals have drawn significant criticism, particularly from industry bodies and law firms. For example, the London Solicitors Litigation Association flagged five key issues, including the question of who would shoulder the costs of extensive redaction, and the risk of non-parties co-opting witness statements for use in other proceedings. The Expert Witness Institute raised concerns of witness safety. Witness evidence has to be tested in a court, in many cases by cross-examination. Allowing non-parties access to such evidence prior to the hearing where the relevant witness is called is a concerning prospect. 

What happens next? 

The CPRC's postponement of its decision is a positive indication of its willingness to take on board industry criticism - the volume of responses from those most likely to be affected highlights that the revised rule 5.4C is considered to be unworkable in its proposed form. 

However, further reform in the name of open justice remains likely, and litigants should prepare for significantly more evidence and submissions being made publicly available in the near future. For those litigants with reputational concerns or publicity-adverse stakeholders, any expansion of the current rule 5.4C is likely to be a worrying prospect, with the possibility of such disclosure set to become a more significant strategic consideration.

If you want to know more, please register for the Ashurst Banking Disputes webinar on 20 June: https://ashurst.zoom.us/webinar/register/4017177485335/WN_Lr8VMa1ORQicKKXyPj4XLQ