When can you prevent non-parties accessing your court documents?

In WH Holding Ltd v E20 Stadium LLP [2024] EWHC 817 (Comm) the High Court gave guidance on what basis a court might make an order restricting the supply of copies of a statement of case to non-parties. The Civil Procedure Rules (CPR) themselves contain no guidance on this and, according to the judgment, there is no previous reported authority on the point. It is not uncommon for litigants to be concerned about confidential or sensitive information they are required to include in court documents to make out their case. This judgment provides helpful guidance on how the courts may approach this issue and demonstrates that the courts will take a restrictive and proportionate approach with emphasis on the principle of open justice.

Background

The general rule in the CPR is that a non-party may obtain from the court records a copy of a statement of case (but not any documents filed with it), provided that a defendant has filed an acknowledgment of service, a claim has been listed for a hearing, or judgment has been entered in the claim (CPR 5.4C(1) and (3)). A ‘statement of case’ is a claim form, particulars of claim, defence, counterclaim, reply or further information regarding such a document provided under CPR 18. This general rule is an expression of the open justice principle – the aim is to facilitate the public’s understanding and scrutiny of the justice system by permitting open access to statements of case.

However, the general rule is subject to certain limitations. The court may on the application of a party or any person identified in the statement of case: (a) order that a non-party may not obtain a copy of a statement of case, (b) restrict the persons who may obtain a copy, (c) give directions as to how a copy of the statement of case must be edited before it is supplied to the non-party, or (d) make such other order as it thinks fit (CPR 5.4(C)(4)).

The claimant in this case had sought an order preventing non-parties to the proceedings from obtaining a copy of any statement of case in the proceedings without an order of the court. The claimant argued that the documents contained agreements between the parties that contained commercially confidential information. The defendant was neutral in relation to the application.

Decision

In the absence of any argument from the defendant or other respondent to the order sought, the judge expressed a "degree of hesitation" regarding his conclusion on the basis on which a court might make an order under CPR 5.4C(4). However, he concluded that the "probably correct" approach to the application was as follows:

• CPR 5.4C(1) established a very clear default principle.
• If that very clear general default principle was to be departed from, it would require clear justification.
• The circumstances that might justify a departure were acutely fact-sensitive and were not closed but were likely to include and probably most likely to be established by reference to one or more of the matters set out in CPR 39.2(3)(a)-(g) (i.e. the list of reasons why a court hearing should be held in private rather than public, such as that it involves confidential information and publicity would damage that confidentiality).
• Given the underlying reasons for the general rule, it was likely to be departed from only if and to the extent it was shown to be necessary to do so to secure the proper administration of justice or to protect the interests of the party whose application was being considered.
• Even if in principle it was shown that some intervention was necessary, any such intervention must, by definition, be no more than was proportionate: the minimum interference with the general rule necessary to protect the interests of the applicant.
• Subject to those qualifications, in principle if a statement of case contained material shown to be confidential or which, by its nature, was confidential and it was shown, or could be readily inferred, that publicity would damage that confidentiality then a court might in principle consider making one of the orders identified in CPR 5.4C(4) to limit the general rule.

Applying that reasoning to the facts in the current case, the judge held that there was much in the statement of case that could not sensibly be regarded as so confidential that its disclosure would compromise the administration of justice or the private interests of either the claimant or any of the individuals referred to in the document so as to make it necessary to make the order sought or proportionate to make any of the other orders available. The most that could be said was that the monetary sums referred to in certain paragraphs constituted confidential or sensitive private financial information relating to the individuals identified in those paragraphs.

The judge considered the appropriate balance between the interests of the individuals identified in keeping their financial information confidential and the interests of the public in the maintenance of open justice was to be struck by redacting the monetary sums set out in those paragraphs before a copy of the document was supplied from the court records to a non-party. He reasoned that such an approach kept the interference with the general rule to the minimum necessary to protect the truly confidential information, and such an order was proportionate. It would also be open to any non-party to apply to court for access to the unredacted document on notice to the claimant.

The judge therefore made an order pursuant to CPR5.4C(4)(c) and/or (d) that the financial amounts in certain paragraphs of the statement of case be redacted from any copy of the document supplied from the records of the court to any non-party.

Key takeaways

Where parties are concerned that their statement of case may contain confidential and sensitive information, they should bear in mind that the courts have power to restrict non-party access to these documents. However, obtaining a broad order may not be easy to achieve. As the approach of the judge in this case demonstrates the courts will seek to uphold the principle of open justice and will carefully examine claims of confidentiality. Any attempt to limit the general rule that copies of statements of case are available to non-parties will be approached restrictively and by reference to the principles of necessity and proportionality.