London Solicitors Litigation Association offers detailed response to CPRC consultation on access to court documents by non-parties

The London Solicitors Litigation Association (LSLA) has recently submitted a comprehensive response to the Civil Procedure Rule Committee's (CPRC) consultation on proposed amendments to CPR 5.4C regarding access to court documents by non-parties.

Upholding Principles of Open Justice

At the heart of the LSLA's response lies a commitment to preserving the fundamental principle of open justice within the legal system of England and Wales. The association recognises the dual purposes of open justice: holding individual courts and judges accountable and enabling public understanding of the justice system's functioning and decision-making processes. Access to court documents by non-parties is seen as a critical component in maintaining transparency, fostering confidence in the judiciary, and promoting public trust in the legal process.

Evaluation of Current Position under CPR 5.4C

The LSLA acknowledges the existing framework provided by CPR 5.4C, which governs the supply of court documents to non-parties from court records. This framework primarily focuses on granting access to statements of case and judgments/orders made in public, ensuring that these documents are readily available for scrutiny and review by interested parties. The straightforward process for obtaining such documents from court records serves to facilitate access and support the principles of open justice.

Proposed Amendments and Practical Challenges

The consultation under review proposes amendments to expand the categories of documents accessible to non-parties, including skeleton arguments, witness statements, and expert reports. While the LSLA recognises the potential benefits of broadening access to certain types of documents, it raises several practical concerns regarding the implementation and implications of the proposed changes.

Among the key challenges identified by the LSLA are:

1. Confidentiality: Many aspects of witness and expert evidence are confidential and not typically disclosed in open court proceedings. Granting general access to such sensitive materials could compromise confidentiality and necessitate additional safeguards to protect privileged information.
2. Timing: The proposed amendments fail to clarify when non-parties may access witness statements and expert reports, raising questions about the appropriate timing of disclosure and potential impacts on the fairness and integrity of legal proceedings.
3. Collateral Use: Allowing non-parties access to witness evidence without clear restrictions on its use outside the litigation context may create risks of misuse or improper disclosure, undermining the rights and interests of the parties involved.
4. Process and Costs: The absence of defined procedures for obtaining witness statements and expert reports, coupled with the potential for increased demands on legal practitioners to produce and redact documents, poses logistical challenges and cost burdens that need to be addressed.

Recommendations and Conclusion

In its response, the LSLA expresses support for providing skeleton arguments to non-parties present at relevant hearings, emphasising the importance of transparency and accountability in legal proceedings. However, the association urges caution and further deliberation on the proposed amendments to CPR 5.4C, particularly concerning the broader access to witness and expert evidence.

As legal professionals committed to upholding the principles of open justice, the LSLA advocates for a balanced approach that addresses practical challenges while safeguarding the integrity and fairness of the legal process. Ultimately, any revisions to CPR 5.4C should be guided by a thorough examination of the rationale, implications, and potential consequences of expanded access to court documents by non-parties.

The LSLA's comprehensive response highlights the need for thoughtful consideration and robust dialogue in shaping the rules governing access to court documents, ensuring that the principles of open justice are upheld while addressing the complexities and challenges inherent in modern litigation practices.

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