Proposals to widen the rights of non-parties to obtain court documents are impractical and could have the perverse effect of diminishing the openness of proceedings, a body representing civil litigators has warned. The London Solicitors Litigation Association (LSLA) was responding to a consultation by the Civil Procedure Rule Committee on reforming CPR 5.4C to give non-parties immediate access to skeleton arguments and witness statements.  

While stressing its support for the principle of open justice, the LSLA said that the proposals involve 'very different categories of documents' to those currently made available: statements of case and court judgments. 

The response lists five issues that 'need to be considered further':

  • Confidentiality of witness statements.
  • Timing: 'it is unclear from the proposed CPR 5.4C at what point in time non-parties may be able to obtain copies of witness statements or expert reports.'
  • Collateral use: Specific provisions addressing the use by a party of witness evidence provided by the other party do not apply to non-parties. 'It would obviously be untenable to have a situation where a non-party can make use of a witness statement in, for example, other proceedings, but a party could not.'
  • Process: 'it is far from clear what the process for a non-party to obtain copies of the evidence is intended to be.'
  • Cost: The proposed amendment makes no mention of costs, or who bears them. 'If a document needed to be redacted before wider access was granted, this would likely fall to solicitors but would not obviously be a cost the client should bear.'

According to the LSLA, the new rule would encourage parties to avoid dispute resolution in open court and could threaten the position of England and Wales as an international dispute resolution centre. 

'We are fully supportive of clarifying expressly in CPR 5.4C that skeleton arguments are to be made available to non-parties present at the hearing to which the skeleton argument relates,' the response concludes. 'However, we are of the view that much more consideration needs to be given to the rationale, practical challenges and direct implications of a prescribed arrangement permitting access to witness evidence and expert evidence as a matter of course.'

Expert witnesses have also voiced concern about the proposals. In its response to the consultation, the Expert Witness Institute has warned about the possible misuse of expert reports in other cases and potential threats to the safety of witnesses. 

 

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