Will courts disclose the identity of someone who requested copies of court documents?

In Hayden v Associated Newspapers Ltd [2022] EWHC 2693 (KB) the High Court held that the identity of persons who requested copies of publicly accessible court documents does not become part of the court record and will not be disclosed by the court.

Background

The Applicant had brought an unsuccessful claim for libel against the Defendant, Associated Newspapers Limited, and was ordered to pay costs. Those costs remained unpaid and on 11 February 2022,  the court ordered the Applicant to attend court to provide information to enable the costs order to be enforced (the ‘Davison Order’). The Davison Order was anonymously posted on the website kiwifarms.net (the ‘Post’) and the Applicant became a target for hostility.

The Applicant applied for an order that the Respondent, His Majesty's Courts and Tribunals Service (HMCTS), should disclose the identity of the person who had obtained a copy of the Davison Order from the court which had then been included in the Post. The judge referred to this person as X. The Applicant argued that the Davison Order had been posted to intimidate her.

In her original Application Notice, the Applicant had sought an order that HMCTS should provide “information” to her about X. At the hearing, she focused more on an order requiring HMCTS to provide documents that would identify X, for example, those that contained the name and contact details that X provided when requesting a copy of the Davison Order. The Claimant argued that the court had jurisdiction to make the order that she sought on two bases:

1. under CPR 5.4B on the grounds that the documents were “records of the court”; and/or
2. under the Norwich Pharmacal jurisdiction. This post does not consider that aspect of the application any further.

“Records of the court” (CPR 5.4B(2))

CPR 5.4B relates to the “supply of documents to a party from court records”:

1. A party to proceedings may, unless the court orders otherwise, obtain from the records of the court a copy of any document listed in paragraph 4.2A of Practice Direction 5A. [Paragraph 4.2 contains a list of documents that are required by the CPR to be filed at court.]
2. A party to proceedings may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party or communication between the court and a party or another person.

Mr Justice Nicklin noted that the CPR do not include a definition of “records of the court”. He referred to the Supreme Court’s “plea for reform” in Dring v Cape Intermediate Holdings Limited [2020] AC 629, in which Baroness Hale noted that the CPR do not even specify or mandate what the records of the court are to contain. The judge considered the approach taken in Dring, which remains the authority on the approach to be adopted to applications for documents from the court records. The reasons for keeping records had to be considered in order to determine what records of the court were. These are documents that have to be preserved on the court filing systems to enable the court to work effectively and for open justice. The term does not refer to every document generated in connection with a case and filed at court.  The judge observed that the introduction of the electronic court filing system, CE-File, has led to an increase in the number and types of documents that are filed at court. This complicates the meaning of “records of the court” even further.

Judgment

The judge rejected the Applicant’s argument in relation to CPR 5.4B, holding that the court does not have jurisdiction under CPR 5.4B(2) to make the order sought.

The judge agreed that the form completed by X and submitted to the court to obtain a copy of the Davison Order was a “communication between the court and …another person” within CPR 5.4B(2). It was a request on a standard form for provision of a document from the records of the court. However, it was not part of the “records of the court”. Rather, it should properly be classified as an administrative document that was received by the court in order to facilitate third-party access to documents of the court required to be publicly accessible. Once such a request for a document has been satisfied, the form is no longer available on the electronic court file. Following Dring, the judge held that such requests for documents from the court file “have no bearing on the litigation” and are wholly unconnected to it.

The judge further held that this conclusion was supported by principles of open justice. It is an important principle that members of the public (such as X) are able to request publicly accessible documents through the court without details of their inquiries and their identity being provided.

Key Takeaways

This is an important point of principle and the decision makes clear that the court will not provide information about the identity of a non-party who has obtained a copy of a publicly accessible document from the court file in civil proceedings

The judge concluded his decision on this point with the following comment, “I am conscious that, in the absence of a definition of "records of the court", I am having to interpret this term. I have done so applying Dring. I can only echo the urging by the Supreme Court that there are important questions of principle and practice relating to what records are kept by the Court and access to them in the interests of open justice. Responsibility for this, in England & Wales, lies principally with the Civil Procedure Rules Committee.” It remains to be seen if further clarity on this point will be provided by the Civil Procedure Rules Committee.

With thanks to Rebecca Vickers for her assistance in preparing this post.