State your case Litigants beware! If you go to court to decide a sensitive dispute, the jackals of the press may have a right to see some of the papers you’ve filed. So, Simon Brew asks, anyone for arbitration?
Recent changes to the Civil Procedure Rules (CPR) have made it easier for the public, and therefore the press, to obtain access to detailed statements of cases filed at court (that is, the particulars of claim, defence, counterclaim and reply). If you believe that engaging in a High Court dispute is washing your dirty linen in public, then litigants now have a wider audience than ever before. All the more reason for careful consideration about the dispute resolution process you specify in your contracts.
Under the CPR, it has always been open to a non-party to make an application to the court for the disclosure of any document on the court record, and non-parties have always been able to obtain a copy of the claim form. In doing so, however, they had to show that there was good cause for granting the application. It is now clear that the court is moving firmly towards a principle of open justice, fortified by recent changes to rule 5.4 of the CPR.
Although it precedes the most recent changes, the principle of open justice now being exercised by the courts is illustrated in the application by the Australian Broadcasting Corporation (ABC) for details of Multiplex Construction (UK) vs Cleveland Bridge UK (2006). ABC made an application under rule 5.4(5) (having already obtained copies of the claim form) to access statements relating to the national stadium at Wembley. Multiplex argued that disclosure of the information contained in the documents might trigger reporting obligations under Australian stock exchange rules, and that the disclosure of the documents at such an early stage of a complex case could give rise to selective and therefore unbalanced coverage.
The applicant was making a documentary about the Multiplex group, and referred to public interest considerations in support of the application. Judge Wilcox permitted disclosure on the grounds that “pleadings ought to be treated as though being read in open court” and “that anyone with a legitimate interest ought to be allowed reasonable access to them in accordance with the principles of open justice”.
Following that, the 42nd CPR update came into force in October 2006. This took things a step further. This time the amendment to rule 5.4 gives non-parties access to statements of case on the court file (although not documents filed with, or attached to, the statement of case) without requiring the permission of the court and without notice to the parties in the case. Although this does not include witness statements, it does include responses to further information requests (which may contain detailed information). It remains open to parties or persons identified in statements of case to apply to restrict the release of that pleading.
Parties must be aware that any non-party may obtain a copy of any statement of case filed with the court without needing the permission of the court
This amendment initially appeared to apply retrospectively, that is, to statements of case filed before 2 October 2006, but following legal action by the Law Society it has been agreed that rule 5.4 will not have retrospective effect. However, parties must be aware that any non-party may now obtain a copy of any statement of case filed with the court without needing the permission of the court.
It follows that clients should be advised that the contents of any statements of case may be seen by third parties and the press. If the statement of case contains sensitive or confidential information the only way to prevent it from it becoming publicly known is to apply to the court to restrict the persons who may have access to it. Alternatively, parties will have to consider (to the extent they are able) what information can be excluded from a statement of case.
As the courts become an increasingly open forum this may encourage parties to look to alternative mechanisms for dispute resolution. One of the advantages of parties having recourse to arbitration rather than the High Court is that arbitral proceedings are conducted in private. In large or high-profile projects, where there may be press interest, the parties may wish to agree to arbitration as the form of final dispute resolution rather than High Court proceedings.
Even more than before, arbitration may be the appropriate forum for resolving issues that are commercially sensitive or liable to attract unwanted media attention. It is interesting therefore that in the 2005 JCT forms of contract the default choice of dispute resolution is no longer arbitration, but the High Court. In light of recent case law and now the amendments to Civil Procedure Rule 5.4, parties should be careful not to end up with the High Court if there is a strong desire to keep matters from a public airing.
Simon Brew is a partner in the construction department of Fladgate Fielder
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