“Given the indication in your email of 29 November (timed at 11.51am) that no draft judgment would be provided, that the judgment would be handed down in Court this afternoon and that attendance is optional, we have not instructed Counsel to attend Court this afternoon. We will endeavour to agree a draft Order with the Applicant as you have indicated, with a view to providing you with a copy of the draft in the coming days. We note the contents of the embargoed judgment at paragraphs 190 and 191 in respect of appeal. Instructions will, of course, need to be taken in respect of permission to appeal and the Order will need to make provision for a stay in respect of the provision of any documents to the Applicant pending the outcome of any application for permission to appeal. We assume that the documents will not be released pending the making of the Order. If this is incorrect, please let me know as soon as possible, so that we can make inquiries with regard to the availability of counsel to appear this afternoon.”
“(a) a certificate of suitability of a litigation friend; (b) a notice of funding; (c) a claim form or other statement of case together with any documents filed with or attached to or intended by the claimant to be served with such claim form; (d) an acknowledgment of service together with any documents filed with or attached to or intended by the party acknowledging service to be served with such acknowledgement of service; (e) a certificate of service, other than a certificate of service of an application notice or order in relation to a type of application mentioned in sub-paragraph (h)(i) or (ii); (f) a notice of non-service; (g) a directions questionnaire; (h) an application notice, other than in relation to – (i) an application by a solicitor for an order declaring that he has ceased to be the solicitor acting for a party; or (ii) an application for an order that the identity of a party or witness should not be disclosed; (i) any written evidence filed in relation to an application, other than a type of application mentioned in sub-paragraph (h)(i) or (ii); (j) a judgment or order given or made in public (whether made at a hearing or without a hearing); (k) a statement of costs; (l) a list of documents; (m) a notice of payment into court; (n) a notice of discontinuance; (o) a notice of change; or (p) an appellant's or respondent's notice of appeal.” (b) a notice of funding; (c) a claim form or other statement of case together with any documents filed with or attached to or intended by the claimant to be served with such claim form; (d) an acknowledgment of service together with any documents filed with or attached to or intended by the party acknowledging service to be served with such acknowledgement of service; (e) a certificate of service, other than a certificate of service of an application notice or order in relation to a type of application mentioned in sub-paragraph (h)(i) or (ii); (f) a notice of non-service; (g) a directions questionnaire; (h) an application notice, other than in relation to – (i) an application by a solicitor for an order declaring that he has ceased to be the solicitor acting for a party; or (ii) an application for an order that the identity of a party or witness should not be disclosed; (i) any written evidence filed in relation to an application, other than a type of application mentioned in sub-paragraph (h)(i) or (ii); (j) a judgment or order given or made in public (whether made at a hearing or without a hearing); (k) a statement of costs; (l) a list of documents; (m) a notice of payment into court; (n) a notice of discontinuance; (o) a notice of change; or (p) an appellant's or respondent's notice of appeal.”
“Rules 5.4B and 5.4C are concerned with the obtaining of copies of documents “from court records” . . . The documents kept in a court office as part of the court’s file of particular proceedings include the formal documents issued by the court itself, in particular, forms of process such as claim forms and application notices, and orders. They include much else besides. The long list of documents inPractice Direction 5A (Court Documents), para.4.2A (see para.5APD.4 below) gives an indication of the wide variety of documents that may be generated in the course of civil proceedings and which conceivably may held in court records . . .”
“….the documents in respect of which FAI seek an order are in no sense part of any public record to which FAI, as a third party to the litigation, enjoys right of access. “Public records” are those documents which fall within the provisions of thePublic Records Act 1958 . They include court records and, in particular, the records of, or held in, a department of the Supreme Court, including records of any proceedings in the court, such as writs and decrees. However: “a court file is not a publicly available register. It is a file maintained by the court for the proper conduct of proceedings. Access to that file is restricted. Non-parties have a right of access to the extent, but only to the extent, provided in the rules:” per Sir Donald Nicholls V.-C. in Dobson v. Hastings[1992] Ch. 394 , 401–402. Provision is made by R.S.C., Ord. 63, rr. 4 and 4A as to the circumstances in which the public may have access to the files of the Supreme Court. In this respect, rule 4 makes a distinction between the right of search and inspection by a party to a cause or matter which is unrestricted in respect of all documents filed in the Central Office or (by virtue of rule 11) in district registers (including affidavits filed in that cause or matter with a view to its commencement) and the right of search and inspection enjoyed by a member of the public, which right is restricted to the documents specified in paragraph (1)(a) and (b). Those are the copy of any writ of summons or any other originating process, any judgment or order given or made in court or a copy of any such judgment or order. Leave of the court is required for a member of the public to have access to any other documents filed in the relevant office or registry: see paragraph (1)(c). Thus, while the parties to an action have free access to affidavits and other documents filed in the action, a member of the public requires leave to obtain such access which, no doubt, will be readily given if the affidavit or other document has been read in open court.”
“19 Where a witness is not called, all one is therefore dealing with in terms of exhibits are documents which have found their way into the trial bundles, because the exhibits would, rather than being exhibited to the witness statements in the trial bundles, have formed part of the chronological bundles at trial. Even where such documents are on the judge's reading list, it does seem to me that the decision of the Court of Appeal in the GIO case does stand fairly and squarely against any suggestion on the part of [counsel for the applicant] that her clients are entitled to have access to those documents. 20 Exhibits are not covered by 32.13 and, correspondingly, they are not covered by 32.12. Although [counsel for the applicant] says the rule is cast very widely, it only refers to witness statements and I am simply not prepared to accept that it covers exhibits to witness statements as well. [Counsel for the applicant] also seeks to put her application under rule 5.4, but that is only concerned with court records and given that witness statements do not form part of the court record or court file in the Commercial Court, a fortiori exhibits to those statements do not either…”
“…opening written submissions are merely tools of advocacy and, unlike pleadings, or case memoranda or case management questionnaires, are not part of the court records. A copy is provided to the judge to facilitate presentation of the case and there is no requirement for filing or the keeping of a copy in the Registry. Indeed, the skeleton argument is normally sent to the Commercial Court Listing Office or, to save time, direct to the judge's clerk, for passing on to the judge. At the end of the trial, it is usually destroyed by the judge or returned to the parties. Further,CPR 31.22 has no application because its function is confined to documents in the possession or control of a party which have been provided to other parties in the course of disclosure. Written submissions do not fall within this class of document, they belong to counsel, not their clients.”
“The Rules of the Supreme Court do not expressly prohibit inspection and taking copies of documents otherwise than in accordance with the rules. What the rules do is to require parties to proceedings to file certain documents in the court office. Ord. 63, r. 4 provides that of the documents which must be filed, some are to be open to general inspection. Other documents may be inspected with the leave of the court. Rule 4 provides further that this requirement is not to prevent parties to proceedings from inspecting or obtaining copies of documents on the file. In my view these provisions do not make sense unless they are read as indicating that, save when permitted under the rules, documents on the court file are not intended to be inspected or copied. That is the necessary corollary of the rules granting only a limited right to inspect and take copies. In other words, a court file is not a publicly available register. It is a file maintained by the court for the proper conduct of proceedings. Access to that file is restricted. Non-parties have a right of access to the extent, but only to the extent, provided in the rules. The scheme of the rules is that, by being filed, documents do not become available for inspection or copying save to the extent that access to specified documents or classes of documents is granted either generally under the rules or by leave of the court in a particular case. The purpose underlying this restriction presumably is that if and when affidavits and other documents are used in open court, their contents will become generally available, but until then the filing of documents in court, as required by the court rules for the purposes of litigation, shall not of itself render generally available what otherwise would not be. Many documents filed in court never see the light of day in open court. For example, when proceedings are disposed of by agreement before trial. In that event, speaking generally, the parties are permitted to keep from the public gaze documents such as affidavits produced in preparation for a hearing which did not take place. Likewise with affidavits produced for interlocutory applications which are disposed of in chambers. Again, there are certain, very limited, classes of proceedings, such as those relating to minors, which are normally not heard in open court. Much of the object sought to be achieved by a hearing in camera in these cases would be at serious risk of prejudice if full affidavits were openly available once filed. In all cases, however, the court retains an overriding discretion to permit a person to inspect if he has good reason for doing so.”
“The first reason is that, on their plain words, they [the rules] impose upon the court a power in respect of witness statements only and they do not extend to cover documents referred to in those statements. That is because, as a matter of ordinary terminology, a distinction clearly exists between a statement and documents referred to in that statement… The second reason is that nothing in the history or context of the introduction of the rule leads one to suppose that the Rule Committee intended thereby to introduce a provision which would enable a third party to the litigation to obtain access to inter partes documents which had previously (unless by agreement with the parties) been unavailable to any member of the public whether or not he or she attended court to hear the oral evidence of the witness in question”
“I do not regard the words of Sir Donald Nicholls V.-C. as extending beyond the context in which they were spoken, i.e. as reflecting the likelihood that leave to inspect a document lodged upon the court file will readily be granted if the document has been read out in open court. They are not in my view to be taken as extending to skeleton arguments or trial bundles which are not documents required to be filed.”
“They do not condescend to greater particularity than that and they certainly do not seek to suggest that, in devising and applying its procedures for the expeditious dispatch of judicial business, the public should be given access to such documentary material as may be before the court by way of evidence.”
“Historically, the matter has been dealt with in the courts of this country in the following manner. While a trial is in progress, subject to the constraints of space, and save where the paramount interests of justice dictate to the contrary, the public and the press have enjoyed a right of access to the court in order to witness the trial process conducted in accordance with procedures laid down in the rules of court; there is also an obligation on the judge to give a reasoned judgment in open court. Once the trial is over, for the purpose of enabling the press and public (as well as the parties) to have access to a record of the evidence and the judgment, R.S.C., Ord. 68, rr. 1 and 2 provide that in every proceeding in the High Court an official shorthand note shall, unless the judge otherwise directs, be taken of any evidence given orally in court or of any summing up or judgment by the judge. If any party so requires, the note shall be transcribed and supplied at charges authorised by the court and it is expressly provided that nothing in the rule shall be construed as prohibiting the supply of transcripts to non-parties. There are facilities for application to be made directly to the official shorthand writers in that respect. In order to cover the lacuna that would otherwise exist in respect of a witness statement ordered to stand as evidence-in-chief, the provisions of R.S.C., Ord. 38, r. 2A(12)–(16) have been introduced, the court having no power to vary or override such provisions. … So far as concerns documents which form part of the evidence or court bundles, there has historically been no right, and there is currently no provision, which enables a member of the public present in court to see, examine or copy a document simply on the basis that it has been referred to in court or read by the judge. If and in so far as it may be read out, it will “enter the public domain” in the sense already referred to, and a member of the press or public may quote what is read out, but the right of access to it for purposes of further use or information depends upon that person's ability to obtain a copy of the document from one of the parties or by other lawful means. There is no provision by which the court may, regardless of the wishes of the parties to the litigation, make such a document available to a member of the public. Nor, so far as such documents are concerned, do I consider that any recent development in court procedures justifies the court contemplating such an exercise under its inherent jurisdiction.”
“the arguments for such an exercise in respect of the written submissions of counsel, or of skeleton arguments which are used as a substitute for oral submissions, seem to me to be a good deal stronger. [counsel for the respondent] for G.M.R. has emphasised the primary but limited purpose of the “public justice” rule, namely to submit the judges to the discipline of public scrutiny. As he neatly put it, it is designed to give the public the opportunity to “judge the judges” and not to judge the case, in the sense of enabling the public to engage in the same exercise of understanding and decision as the judge. That of course is true. However, the confidence of the public in the integrity of the judicial process as well as its ability to judge the performance of judges generally must depend on having an opportunity to understand the issues in individual cases of difficulty. As Lord Scarman observed in Home Office v. Harman [1983] 1 A.C. 280, 316: “When public policy in the administration of justice is considered, public knowledge of the evidence and arguments of the parties is certainly as important as expedition: and, if the price of expedition is to be the silent reading by the judge before or at trial of relevant documents, it is arguable that expedition will not always be consistent with justice being seen to be done.”
“Since the date when Lord Scarman expressed doubt in Home Office v. Harman as to whether expedition would always be consistent with open justice, the practices of counsel preparing skeleton arguments, chronologies and reading guides, and of judges pre-reading documents (including witness statements) out of court, have become much more common. These means of saving time in court are now not merely permitted, but are positively required, by practice directions. The result is that a case may be heard in such a way that even an intelligent and well-informed member of the public, present throughout every hearing in open court, would be unable to obtain a full understanding of the documentary evidence and the arguments on which the case was to be decided. In such circumstances there may be some degree of unreality in the proposition that the material documents in the case have (in practice as well as in theory) passed into the public domain. That is a matter which gives rise to concern. In some cases (especially cases of obvious and genuine public interest) the judge may in the interests of open justice permit or even require a fuller oral opening, and fuller reading of crucial documents, than would be necessary if economy and efficiency were the only considerations. In all cases the judge's judgment (delivered orally in open court, or handed down in open court in written form with copies available for the press and public) should provide a coherent summary of the issues, the evidence and the reasons for the decision. Nevertheless the tension between efficient justice and open justice is bound to give rise to problems which go wider than Order 24, rule 14A. Some of those problems were explored in the judgment of Potter L.J. in GIO Personal Investment Services Ltd v. Liverpool and London Steamship Protection and Indemnity Association Ltd (FAI General Insurance Co Ltd Intervening) [1991] 1 W.L.R. 984. As the court's practice develops it will be necessary to give appropriate weight to both efficiency and openness of justice, with Lord Scarman's warning in mind. Public access to documents referred to in open court (but not in fact read aloud and comprehensibly in open court) may be necessary, with suitable safeguards, to avoid too wide a gap between what has in theory, and what has in practice, passed into the public domain.”
“41 This raises an important general issue as to how to reconcile the requirement that court proceedings are required to be open to the public so that the public can be aware of what happens in court proceedings with the increasing resort to practices such as the judge reading documents in his room away from the public gaze. If the judge does not state in open court what he has read what is assumed to be the position in the absence of evidence to the contrary? 42 It is important to note that this is a different although related question to that which arises under R.S.C., Ord. 63, r. 4 (and now under C.P.R., Part 5) on an application for permission to inspect documents on the file of the court. It is also distinct from the question of the use to which documents disclosed on discovery can be put. 43 As a matter of basic principle the starting point should be that practices adopted by the courts and parties to ensure the efficient resolution of litigation should not be allowed to adversely affect the ability of the public to know what is happening in the course of the proceedings.”
“50 GIO Services involved an application to obtain copies of the documents. Here D. & T. do not require the court's assistance for this purpose. D. & T. only need to establish that the absence of any evidence that Jonathan Parker J. actually read the documents is not fatal to their case; that even without such evidence the documents, because of their use in the proceedings, were available to the public for inspection. This is not without significance because Potter L.J. thought that the comment which he cited of Sir Donald Nicholls V.-C. in Dobson v. Hastings[1992] Ch. 394 , 402 when he said “if and when affidavits and other documents are used in open court, their contents will become generally available” should be read restrictively. In our judgment the contrast which Sir Donald Nicholls V.-C. drew between that position and documents on the court file is accurate. 51 The tension between the need for a public hearing of court proceedings and what happens in practice in the courts will be increased when theHuman Rights Act 1998 comes into force and the courts will be under an obligation to comply with article 6. Already, this court has recognised the need to give “appropriate weight to both efficiency and openness of justice” in the judgment of the court given by Lord Bingham of Cornhill C.J. in SmithKline Beecham Biologicals S.A. v. Connaught Laboratories Inc. [1999] 4 All E.R. 498, 512d–e. As Lord Bingham C.J. recognised, it “may be necessary, with suitable safeguards, to avoid too wide a gap between what has in theory, and what has in practice, passed into the public domain.”
“First, if a party is at liberty to “use” a disclosed document, he may no doubt make it available to a non-party, in the absence of a special order preventing that. Second, if the court does make an order underCPR r 31.22 (2), but the document in question comes into the possession of a third party, for instance by accident or theft, then any use by the third party of the document with knowledge of the court's order will arguably be a contempt.”
“First, there are taken to fall under the rule certain categories of document, in particular those coming within the prereading of the judge. It does not have to be established that the judge has actually read the documents: once the category is established, it is for a party alleging that they have not in fact been read to establish that fact, something that has to be achieved without inquiry of the judge: see Barings v Coopers & Lybrands[2000] 1 WLR 2353 , 2367, para 53. Second, it therefore follows that not everything that is disclosed or copied in court bundles falls under this rule: the Connaught approach is restricted to documents to which the judge has been specifically alerted, whether by reference in a skeleton argument or by mention in the “reading guide” with which judges are now provided at least in patent cases. Third, since the Connaught approach is based upon the assumed orality of a trial, documents, however much pre-read by the judge, remain confidential if no trial takes place, but the application is, for instance, dismissed by consent, albeit by a decision announced in open court: see SmithKline Beecham Biologicals SA v Connaught Laboratories Inc[1999] 4 All ER 498 .”
“9 The central theme of these rules is the importance of the principle that justice is to be done in public, and within that principle the importance of those attending a public court understanding the case. They cannot do that if the contents of documents used in that process are concealed from them: hence the release of confidence once the document has been read or used in court. As this court recognised in the Connaught Laboratories Inc case, there may be some artificiality about that approach. That is because full access to documents deemed to have been read or used in court may give third parties at least the possibility of much more fully studying and understanding the case and the issues in it than if they merely heard the documents read aloud. Nevertheless, that paradox helps to underline this court's concern that economical means of using and referring to the documents, understood amongst the lawyers, should not exclude the spectators from comprehension of the case.”
“(i) The court should start from the principle that very good reasons are required for departing from the normal rule of publicity. …The already very strong English jurisprudence to this effect has only been reinforced by the addition to it of this country's obligations under articles 6 and 10 of the Convention. (ii) When considering an application in respect of a particular document, the court should take into account the role that the document has played or will play in the trial, and thus its relevance to the process of scrutiny ….. The court should start from the assumption that all documents in the case are necessary and relevant for that purpose, and should not accede to general arguments that it would be possible, or substantially possible, to understand the trial and judge the judge without access to a particular document. However, in particular cases the centrality of the document to the trial is a factor to be placed in the balance. (iii) In dealing with issues of confidentiality between the parties, the court must have in mind any “chilling” effect of an order upon the interests of third parties: see paragraph 5 above. (iv) Simple assertions of confidentiality and of the damage that will be done by publication, even if supported by both parties, should not prevail. The court will require specific reasons why a party would be damaged by the publication of a document. Those reasons will in appropriate cases be weighed in the light of the considerations referred to in sub-paragraph (ii) above. (v) It is highly desirable, both in the general public interest and for simple convenience, to avoid the holding of trials in private, or partially in private….”
“69 The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied. 70 Broadly speaking, the requirements of open justice apply to all tribunals exercising the judicial power of the state. …. 75 … I do not consider that the provisions of the Criminal Procedure Rules are relevant to the central issue. The fact that the rules now lay down a procedure by which a person wanting access to documents of the kind sought by the Guardian should make his application is entirely consistent with the court having an underlying power to allow such an application. The power exists at common law; the rules set out a process. …. 83 The courts have recognised that the practice of receiving evidence without it being read in open court potentially has the side effect of making the proceedings less intelligible to the press and the public. This calls for counter measures. In SmithKline Beecham Biologicals SA v Connaught Laboratories Inc[1999] 4 All ER 498 Lord Bingham referred to the need to give appropriate weight both to efficiency and to openness of justice as the court's practice develops. He observed that public access to documents referred to in open court might be necessary. In my view the time has come for the courts to acknowledge that in some cases it is indeed necessary…. …. 85 In a case where documents have been placed before a judge and referred to in the course of proceedings, in my judgment the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose, the case for allowing it will be particularly strong. However, there may be countervailing reasons. In company with the US Court of Appeals, 2nd Circuit, and the Constitutional Court of South Africa, I do not think that it is sensible or practical to look for a standard formula for determining how strong the grounds of opposition need to be in order to outweigh the merits of the application. The court has to carry out a proportionality exercise which will be fact-specific. Central to the court's evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others.”
“(1) A witness statement which stands as evidence in chief is open to inspection during the course of the trial unless the court otherwise directs. (2) Any person may ask for a direction that a witness statement is not open to inspection. (3) The court will not make a direction under paragraph (2) unless it is satisfied that a witness statement should not be open to inspection because of – (a) the interests of justice; (b) the public interest; (c) the nature of any expert medical evidence in the statement; (d) the nature of any confidential information (including information relating to personal financial matters) in the statement; or (e) the need to protect the interests of any child or protected party. (4) The court may exclude from inspection words or passages in the statement.”
“27 It seems to me that obtaining copies of documents of the kind in issue in this case raise different questions from access to witness statements, experts reports and skeleton arguments, as Potter LJ explained in the GIO case. Third parties are given access to documents like skeletons, witness statements and experts reports because the idea is that the trial is in public and a person could sit in court and hear what is said — they could write it down and they could quote and reproduce it. The modern paper-based approach to proceedings should not provide a fetter to that open justice. 28 But copies of other documents raise different considerations. A third party sitting in court does not ordinarily have unfettered access to such materials, e.g. the photographs sought on this application. Such access does not normally allow a third party to take copies of photographs which are used in court. A journalist could write up the proceedings and describe what has happened but that is a different thing. In my judgment, the law explained in GIO governs the matter in relation to documents 2 to 8 and the rules of court have not, save forCPR r5.4 C about the court records and r32 about witness statements, sought to change anything since that case. 29 One might imagine all kinds of safeguards and balances which might be required to be dealt with in such a rule if it covered exhibits and other similar documents. It might deal with handling the timing of applications of this kind, confidentiality, any copyright in the documents, the rights of third parties and, no doubt, other things.”
“56 In the present case, although Alfa is not interested in whether justice was properly administered in the Dian case, I think it does have a legitimate interest in obtaining access to documents on the court record in so far as they contain information that may have a direct bearing on issues that arise in the litigation in the Caribbean. I did not accept the submission that the link is too tenuous to make it appropriate to allow any access to the records at all. Moreover, I think that in the case of documents that were read by the court as part of the decision-making process, the court ought generally to lean in the favour of allowing access in accordance with the principle of open justice as currently understood, notwithstanding the view that may have been taken in the past about the status of hearings in chambers. 57 On the other hand, I do not consider that the court should be as ready to give permission to search for, inspect or copy affidavits or statements that were not read by the court as part of the decision-making process, such as those filed in support of, or in opposition to, the application for summary judgment in this case. These were filed pursuant to the requirements of the rules but only for the purposes of administration. The principle of open justice does not come into play at all in relation to these documents. I do not think that the court should be willing to give access to documents of that kind as a routine matter, but should only do so if there are strong grounds for thinking that it is necessary in the interests of justice to do so. In the present case the likelihood is that the parties' respective cases are set out in some detail in the affidavits sworn in support of the application for a freezing order, the application to serve out of the jurisdiction and the application for security for costs. At this stage I am not satisfied that it is necessary in the interests of justice to go beyond them.”
“i) There is no unfettered right to documents on the court file except where the rules so specify: Dian at [20]; ii) The requirement for permission is a safety valve to allow access to documents which should in all the circumstances be provided: Dobson v Hastings at page 406; iii) The principle of open justice is a powerful reason for allowing access to documents where the purpose is to monitor that justice was done, particularly as it takes place: Dian at [30]; iv) Where the purpose is not to monitor that justice was done, but the documents have nevertheless been read by the court as part of the decision making process, the court should lean in favour of disclosure if a legitimate interest can still be shown for obtaining the documents: Dian at [56]; v) Where the principle of open justice is not engaged at all, such as where documents have been filed but not read, the court should only give access where there are strong grounds for thinking that it is necessary in the interests of justice to do so.”
“21. I would add that the procedure under the CPR should not in general be used for obtaining copies of documents which are available from public sources.”
“28. Thus the substance of this passage is that if there had been no effective hearing save for the purpose of obtaining from the judge an order which reflected the parties' settlement of their dispute, the application for access to disclosed documents, which the judge had been invited to read and had read before the hearing, would have been refused because the trial never reached the stage where his consideration of such documents was in substitution for their having been read out to enable him to take a judicial decision. On the facts of that case, however, the trial did commence; there was a very short hearing because the application to revoke the patent was not conceded but not opposed and the judge used his familiarity with the documents in question to arrive at his order of revocation. 29. It is thus essential for a court invited to exercise its inherent jurisdiction to grant to a non-party access to written skeleton or outline submissions to investigate what part they are playing or have played in the trial. For example, there can be little doubt, in my judgment, that if a case settles before the hearing commences but after the judge has read the submissions, the jurisdiction should not be exercised in favour of access. In such a case no observer of a public hearing would have been denied knowledge of submissions made at that hearing by reason of their having been committed to writing. 30. Where, however, the hearing commences and counsel provides the judge with written submissions which are not read out in court or not fully read out and the hearing ends in a judgment, there can equally be little doubt that the court's discretion ought to be exercised in favour of access. The non-party observer will otherwise have been deprived of the whole or part of that which was submitted to the judge. The result would be the same if by the end of the trial, certain issues had been abandoned. 31. But what happens where the trial begins, where the judge has read the submissions, but where the whole case is settled before judgment, perhaps after many days of hearing? In order to resolve this question it is necessary to answer one essential question of principle. Is the existence of a judgment or other judicial decision of the court a pre-requisite of the exercise of the jurisdiction in favour of access? For if it is, the absence of such a judgment or decision would lead to the conclusion that every time the settlement of a case intervened before the application for access was decided, further public scrutiny of written submissions would be closed off. 32. In the passage which I have already cited from the judgment in Gio, at page 996 F-G, the Court of Appeal expressly contemplated "an application from the press or the public in the course of the trial" being granted there and then. That was not what happened in that case where, by the time when the application came to be heard, a judgment had been given, albeit not determining issues between the claimant brokers who had already settled but whose submissions were previously included in the submissions provided to the judge in the course of opening. 33. Although it is clear that in SmithKline Beecham v. Connaught Laboratories, supra, the court reached its conclusion on the grounds of there ultimately being a judicial determination of the revocation issue by contrast with that issue having been resolved without a hearing by consent, I do not read Lord Bingham's reasoning as necessarily involving existence of such a judgment in cases where the trial has already commenced and the written submissions have already been deployed at the hearing in substitution for, or as auxiliary to, oral argument. There had in that case never been a hearing at which the submissions could have been so deployed. Access to them only became justifiable because the use which the judge ultimately made of them to arrive at his decision was to proceed as if there previously had been a hearing at which the case had been orally opened or at least at which counsel had, as in Gio, put in the submissions after orally introducing the issues. There would thus never have been a process of relevant substitution but for the effect of the judge's reliance on the submissions to reach his conclusion. 34. In this analysis, it is clear from the authorities that the essential purpose of granting access to such documents is to provide open justice, that is to say to facilitate maintenance of the quality of the judicial process in all its dimensions, so that the public may be satisfied that the courts are acting justly and fairly and the judges in accordance with their judicial oath. That, however, does not involve merely the perceived quality of final judgments with reference to the evidence, the submissions and the law, but the quality of judicial control of the trial on a day to day basis. There may be in the course, even of the first few days of a potentially long and complex hearing numerous occasions for judicial decision-taking with regard to the conduct of the hearing. These are all part of the public judicial function. The judge's knowledge of the issues may be and often is of vital relevance to such decision-taking. Once he has read the written submissions he may well be better equipped to perform this vital function. In this way, the submissions play an active role in facilitating the conduct of the trial from the very moment when they have been read and the trial has commenced. It is for this reason, that in my judgment, the public policy of openness requires that the outside observer should be given access to these materials in the course of the hearing before judgment, as envisaged in Gio. If such an order is appropriate before judgment in an on-going trial, there is no logical objection to such an order where, as in the present case, the hearing proceeded for several days and then settled. 35. Does this approach require qualification on the grounds that the oral submissions advanced in parallel with the written submissions never got as far as a particular point in those written submissions? In principle, the answer to this question must be No. The hearing was proceeding at the time of settlement and the written submissions had by then been read by the court in order to facilitate the conduct of that hearing. The fact that the parallel oral opening had not covered the whole ambit of those written submissions does not mean that they had not been relied upon by the court to inform itself of the totality of the issues for the purposes of the conduct of the hearing so far at it proceeded.”
“Mr Dring acts for a group which provides help and support to asbestos victims. It some respects it is also a pressure group and is involved in lobbying and in promoting asbestos knowledge and safety. Those are legitimate activities and provide legitimate interest. The evidence before me demonstrates that the intended use is to enable him and the forum of which he is an officer, to: • make the material publicly available, • by making it available to promote academic consideration as to the science and history of asbestos and asbestolux exposure and production, • improve the understanding of the genesis and legitimacy of TDN13 and any industry lobbying leading to it in the 1960s and 1970s.”