Bulletins Story: TO SEE OR NOT TO SEE?  NEW RULES ON ACCESS TO COURT DOCUMENTS

Date: 16.10.2006

On 2 October 2006 a new civil procedure rule came into force allowing non-parties to a claim to obtain copies of documents from the court files without needing the court's permission.

In order to obtain the document, the defendant (or if more than one defendant, all of them) must have filed an Acknowledgement of Service or a Defence, or the case must have been listed for hearing. There is also a fee payable by the party requesting the document.

A party to the claim can make an application to the court to prevent disclosure to third parties.

Changes from Old Rules

The old rules only allowed non-parties to obtain a copy of the Claim Form, not any other statement of case (previously known as pleadings). Now, however, non-parties may request any document filed, including the all important Particulars of Claim and Defence. One caveat is that the court cannot release documents attached to any statement of case, such as a contract which forms part of the substance of the claim.

Retrospective Effect?

Following an injunction application by the Law Society, an interim declaration was made by the court on 5 October stating that the new rule will not apply to pre-existing claims issued before 2 October.

For these claims, the old rules are still applicable. This will provide comfort for parties to a claim which has ended, either through trial or by way of settlement, who had no expectation that the details of their claim would be made public by virtue of the new rule and, for the moment, for those parties who have ongoing claims which were issued before 2 October.

Practical Impact for the Parties and their Advisors

In light of the new rules, the following issues should now be considered by any solicitor when advising clients:

• Extreme care must be taken when drafting Particulars of Claim, Defences and any other documents filed at court and therefore likely to be seen by non-parties as a consequence of this new procedure.
  
• The "third parties" who are most likely to be interested in obtaining documents from the court file are journalists, hoping for something newsworthy to publish. Do not therefore include anything, especially in a Particulars of Claim, Defence or Reply (statements of case) which you do not wish to be made public.
  
• Consider whether sensitive information can be listed in a schedule to a statement of case as, pursuant to the new rules, anything merely attached to a statement of case may not be disclosed under this procedure.
  
• If a non-party can obtain a copy of the order embodying the terms of an agreement, there may be little protection to be gained by the inclusion of a confidentiality clause in a settlement agreement. The terms of such an agreement should be part therefore of a schedule to such an order.
  
• Can the matter be settled by means of alternative dispute resolution before issuing proceedings? This will avoid having to file any documents at court at all and hence, the details of the dispute can be kept between the parties by means of a confidentiality clause.
  
• When entering into commercial contracts, should the parties include an arbitration clause for settling disputes? One advantage of arbitration proceedings is that they are confidential.
  
• Should an application be made immediately upon filing a document to prevent disclosure of documents to third parties in case a request for disclosure is made at some point in the future?

The Future?

How successful parties are at preventing disclosure of documents requested by non-parties remains to be seen but, no doubt, we will see such an application sooner rather than later. It will be wholly within the court's discretion whether to make an order preventing disclosure to third parties. Any application will inevitably be somewhat "anticipatory" as the application will have to be made before a request is made for disclosure of the document. The court may therefore require strong evidence of prejudice if the document is disclosed.

A further concern is how the court office will deal with any order made preventing disclosure. If a non-party attends at the court office requesting a document and bearing the relevant fee, will it be incumbent upon the court office to first check the file for an order preventing disclosure? And if a document is released to a non-party despite the existence of an order preventing disclosure, will this open the floodgates for negligence claims against the court service?

Finally, the court has set an expedited trial date of 2 November for the final decision as to whether the rule will act retrospectively, so pre 2 October claimants and defendants beware - you are not out of the woods just yet.

Tracy McManus

Defamation & Privacy

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