Various documents generated during proceedings may be held by the Court or Tribunal on a case file. In certain circumstances, this material may be accessed and used by interested parties for other purposes. Often, it is a particularly useful source of information for parties involved in related, including parallel, proceedings.
With that in mind, it is important for those facing multiple proceedings to ensure consistency in documents filed with the Court - any tensions or inconsistencies can be exploited by an opponent and may undermine their case. This possibility is not solely the preserve of private parties, for example the SFO may apply to access material from the Court file in a civil case, for use in a criminal investigation or proceedings.
Some classes of material are publicly available and accessible upon request and others will be made available only by order of the Court following an application (for further information see CPR5.4(C), CrimPR 5.8 and Criminal Practice Direction I (General matters) 5B). The justification for allowing access is that open justice requires documents which form part of the Court’s decision-making process, as well as any order or judgment made following a public hearing, to be available. There are exceptions to this but they have to be justified by some even more important principle.
When determining applications for access to documents on the Court file, the Courts will weigh the public interest in open justice and the interests of the party seeking access (including the purpose for which the material sought is required), against the private interests of the parties to the proceedings and any specific objections they raise. Documents whose contents have been read out in open Court, or are treated as though they have been (such as documents read by the Judge), should generally be made available.
An application for access to material on the Court file for use in related proceedings will most commonly be made by an interested third party (i.e. not a party to the proceedings). Where a party to proceedings seeks to use material served by its opponents and lodged on the Court file for the purposes of a related action it should make an application for the Court’s permission to use them for a collateral purpose (see Handling case material: seeking permission. Alternatively, a party may seek specific disclosure of documents filed by an opponent in related proceedings, where they are known to be in their possession and are expected to meet the relevant test.
Access to documents on the Court file may be restricted by an order of the Court, where it is in the interests of justice to do so. Any restriction imposed will be limited to that which is necessary and proportionate in the circumstances of the particular case. If it is possible to address the interests of an applicant by some lesser measure, such as the redaction of certain information from the documents on file, the Court will generally prefer that course of action.
Tribunals hearing regulatory proceedings may maintain a Court file from which an interested party could seek to obtain documents. However, this will not always be the case - for example, the Upper Tribunal (Tax and Chancery Chamber), which hears contested proceedings brought by the FCA, does not maintain a Court file or have in place a formal process by which an interested party can seek access to case material.
A request for access to material can be made by an interested third party to a judge hearing proceedings, who will consult with the relevant parties. However, where they object to the material being made available (often the case), the judge will typically refuse to grant access.