Pal Singh Sanghera advises solicitors to consider carefully new rules on non-parties obtaining statements of case


Most court proceedings are conducted in public. Evidence is taken in public and judgment is given in public. There is even a move towards some parts of proceedings that have traditionally been in private - for instance in family cases - being in public. For justice to be seen to be done, there is a need for public access not just to the hearing but also to the evidence that has been placed before the court to enable it to reach its decision.



This trend towards greater transparency is evident in the 42nd amendment to the Civil Procedure Rules.



It has always been the case that a party to proceedings has enjoyed an almost general right to obtain copies of documents from the court file. In the case of most documents (a list of which appears in the practice direction to rule 5 at 4.2A), this right is subject to the court ordering otherwise. In the case of any other documents that the other side has filed at court, it is subject to the court giving permission.



However, a non-party could not obtain any document other than a claim form or judgment unless the court first gave permission. The restriction applied even to documents filed with or attached to the form. Any such request for permission would, of course, have to be justified.



That position has now changed. Rules 5.4C and 5.4D now allow a non-party to obtain, almost as of right, not just the form but the statement of case. This means that particulars of claim, defence and any part 20 claim can be obtained without the need for court permission. As far as any other document is concerned, the court's permission is still required. Subject to that permission, a non-party can obtain any other document filed by any party, or any communication with the court (whether with the parties or another person).



There were real and justified issues over the retrospective effect of the new rule. Following a hearing at the instigation of the Law Society, this retrospective effect was removed. Rule 5.4C does not apply to statements of case filed before 2 October 2006. In that respect, the old rules still apply.



However, concerns over confidentiality remain. One can imagine cases in which commercially sensitive information, which a competitor may be interested in seeing, may have to be included in statements of case. There will need to be careful consideration of what information has to be put into a statement of case.



It will be the responsibility of lawyers to protect their clients' interests. They will have to weigh with care the information that they may effectively be putting into the public domain. Placing what a litigant may feel is commercially sensitive information in a schedule separate from a statement of case is risky, as it could be copied. Rule 5.4C(1)(a) expressly excludes 'any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it'.



However, the statement of case would, to serve any useful purpose, need to refer to the schedule. Would that schedule, which gives additional information expressly mentioned in the statement of case, be a simple attachment or would it be an integral part of the statement of case? It would be a brave lawyer who gambled on court staff treating any schedule as a separate document. Do not lose sight of the fact that a non-party could simply obtain a copy without any permission and, therefore, without any judicial oversight.



The rules contain an important safety clause which was not in the previous rule. It is now possible to make an application under 5.4C(4) to restrict or prevent a particular document from being supplied to a non-party or a named (class of) person. A party or any person identified in a statement of case can apply for an order to avoid or limit disclosure.



The rules give the court a wide discretion. It can make such an order as it thinks fit. In particular, it has the power to restrict the classes of person who may obtain a copy of the statement of case, or that the statement of case should be edited. The making of such an order does not, of course, prevent a non-party from applying for permission for the supply of copies of the relevant document. However, it would prevent any disclosure without an application on notice to the person who obtained the preventive order. This will not only enable objections to disclosure being judicially considered, but also avoid information being disclosed and the party concerned remaining in ignorance.



Careful consideration of rule 5.4C and the related practice direction is going to be vital before any statement of case is filed, particularly by those acting for commercial clients.



A non-party must, in any event, make an application if he requires any other document other than a statement of case. There are certain prerequisites, which remain as before, before any application can be made.



First, an application plus a fee is required. That application must be in accordance with part 23 and must be justified as with any other application. However, unless the court so requires, or where a preventive order has been obtained, an application can be made without notice. One would expect permission at a without-notice hearing to be given only in the clearest and most objectively justified circumstances.



Second, there must have been an acknowledgement of service filed by the defendant or one of two or more defendants. The claim must have been listed for hearing or judgment entered on the claim.



The court can be expected to exercise its discretion on broadly similar principles as before, but the climate is shifting. There is a continuing, and justifiable, move to greater transparency.



District Judge Sanghera sits at Coventry County Court