Is the court obliged to provide you with a copy of a document on its file in a civil case? Marc Marin reports

Rule 5(3) of the Civil Procedure Rules 1998 (CPR) provides that unless the court orders otherwise, a party to proceedings may obtain copies of the statements of case, a judgment or order made in public, an application notice and the evidence in support, notice of payment into court and an appellant's or respondent's notice. An application notice and evidence in support of an application by a solicitor to be removed from the court record or for an order that the identity of a witness not be disclosed are excluded from rule 5(3).


Rule 5(4) goes further. If the court gives permission, a party may obtain a copy of any other document filed by a party, or communication between the court and a party or another person.


Rule 5(5) applies to non-parties who wish to inspect or take a copy of a document on the court file. The rules divide non-party disclosure into two categories.


Rule 5(5)(a) permits disclosure of a claim form and a judgment or order given in public, unless the court orders otherwise. This must be read in conjunction with rule 5(6)(a) to (d), which permits disclosure under rule 5(5)(a) only if the defendant has filed an acknowledgement of service, the claim has been listed for a hearing or judgment has been entered in the claim. If there is more than one defendant, all must have acknowledged service or served a defence, otherwise the court's permission is required.


Where a non-party seeks disclosure of any other document, rule 5(5)(b) applies and the court's permission is required. Where permission is not required, a simple written request is sufficient. To avoid delay, the letter should refer to the appropriate rule on which the request is based and identify the document.


If permission is required, an application notice must be issued in accordance with part 23.


In Dian v Davis Frankel & Mead [2004] EWHC 2662 (Comm); [2005] 1 All ER 1074, Mr Justice Moore-Bick commented that the court file is not a public register, but a file maintained by the court for the proper conduct of proceedings. Thus, access to the file is restricted to the extent permitted by rule 5. Therefore, the applicant should identify what document he requires as far as possible.


This requirement is now contained in paragraph 4 of the practice direction to part 5. Good practice also suggests that a draft order and any other relevant information be included with the application notice.


Although not compulsory, a witness statement may be appropriate. It should explain the basis of the application and address the matters the court will consider when deciding whether or not to grant the request.


The application can be made without notice (rule 5(9)), but the court may direct that anyone affected by its decision should be given notice. A district judge (or master in the High Court) will hear the application unless the court directs otherwise. If the applicant believes that the application requires more senior judicial scrutiny, he should say so immediately, so that the court may consider this request before listing the application.


Before making an application, care should be taken to consider whether part 5 applies. Rules 5(4) and 5(5) only allow the applicant to obtain a document 'from the records of the court'.


Thus, skeleton arguments and opening or closing written submissions are not covered by part 5. The application would have to be made pursuant to the court's inherent jurisdiction (see Law Debenture Trust v Lexington Insurance Company [2003] EWHC 2297 (Comm); [2003] All ER (D) 165 (Oct)).


A transcript of a hearing is also not part of 'the records of the court'. CPR rule 39(2)(1) states that a hearing is in public, and paragraph 6.3 of practice direction 39A allows anyone to obtain a transcript. The right to obtain a transcript is absolute - the judge's consent is not required, as Mr Justice Park pointed out in Re Guardian Newspapers [2004] EWHC 3092 (Ch); [2005] 3 All ER 155.


CPR part 32(13) provides that a witness statement that stands as evidence in chief is open to inspection during the course of the trial (but not after), unless the court orders otherwise. If the court's permission is required, what factors will the court consider? In Guardian, Mr Justice Park said that 'the general tenor of the cases is in favour of disclosure to the public of materials which, in proceedings in open court, have as it is sometimes put "entered into the public domain"'. This approach echoes Lord Justice Potter's approach in Gio Personal Investment v Liverpool and London SPIA [1999] 1 WLR 984.


The application should be made promptly. In Guardian, it was suggested that an application by a newspaper to inspect the court file of an 'old and stale case' may be refused.


The court will consider 'what end the disclosure is intended to serve'. In Dian, the applicant's wanted to see documents that would help it in related litigation. Despite there being only a private and evidential interest as opposed to a public interest, Mr Justice Moore-Bick ordered disclosure.


In Guardian, disclosure was granted to a newspaper even though its motive went beyond the stated desire to prepare an accurate report of the case. It was said that, in terms of the rules, 'the press are just part of the public'. Where there are considerations of commercial confidentiality, disclosure may be refused. See Lilly Icos v Pfizer (no 2) [2002] EWCA Civ 02; [2002] 1 All ER 842.


The fact that a document was only read by the judge is not a bar to disclosure (see Guardian and Dian). However, disclosure of an affidavit filed for a hearing that did not take place may be refused (see Dian).


In litigation, where the issues or subject matter involved are sensitive or potentially embarrassing, the careful solicitor should consider the possibility of a non-party disclosure application being made. After trial or settlement, it may be appropriate to obtain an order restricting the release of documents on the court file or permitting the removal of documents by the parties.


What of the Freedom of Information Act 2000? Section 32 provides that any document filed at court for the purposes of proceedings in a case is exempt information and cannot be obtained under the Act.


District Judge Marc Marin sits at Barnet County Court