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Law Column: Appeal court reiterates right of access to documents


At first blush, a major dispute between the tobacco industry and the government over tobacco packaging may not seem directly relevant to open justice and journalists’ rights, but read on…

Recently, the Court of Appeal handed down judgment in British American Tobacco (UK) Ltd’s application against the Secretary of State for Health for permission to obtain copies of documents on the Court file. Whilst the thought of reading through a 48 paragraph judgment may not appeal to some people, this one might just be worth it.

The original proceedings entailed a judicial review claim which revolved around the Standardised Packaging of Tobacco Products Regulations 2015 and whether those regulations were unlawful. Following judgment in those proceedings, BAT(UK) made the application for disclosure on behalf of a US-based NGO.

Briefly, BAT(UK) sought disclosure of expert reports, letters sent by the World Health Organisation, witness statements of the UK’s Chief Medical Officer and submissions to UK ministers (amongst other documents) which were on the court file from the original judicial review claim. BAT(UK) was not party to the original proceedings and the Secretary of State opposed the application on that basis. BAT(UK) argued that disclosure of the documents would ultimately facilitate debate concerning the issue of standardised plain cigarette packaging.

The Secretary of State argued that BAT(UK) was not entitled to the documents as, according to Civil Procedure Rules, an individual / organisation that was not party to proceedings is generally only entitled to documents “from Court records” and the documents that BAT(UK) requested were not part of the Court records. What documents actually form the Court records was a point which had been considered earlier by the Court of Appeal in a case called Cape Intermediate Holdings Ltd v Dring. The judges in Cape concluded that trial bundles, trial witness statements and trial expert reports did not form the Court records, and so the Secretary of State relied on this saying that BAT(UK) was not entitled to see those documents.

But the lead judge, Lord Justice Green, disagreed – and this is exactly why the judgment may be worth a read!

The judge relied heavily upon the doctrine of open justice.  He pointed out that BAT(UK) had had the right to attend the original judicial review hearing, just like any other member of the public or media, as it had been held in open court. The documents that BAT(UK) sought disclosure of had been considered in open court and therefore arguably, the documents were already in the public domain.  Therefore, Green LJ said he saw no reason to prevent them being disclosed.

Even if you aren’t a party to proceedings, and as long as the hearing has taken place in open court, this case makes it evident that you are more than entitled to make an application to the Court requesting disclosure of documents used within proceedings. Just as a Court does not ask an individual to justify why they are attending an open court hearing, so an application for disclosure of documents doesn’t need to be accompanied with any sort of justification as to why those documents are being requested.

As always, there will be exemptions. The Court is highly unlikely to allow disclosure of documents where there is an underlying reason why disclosure should not be granted, for example where confidentiality is an issue, or a document raises points of national security. The Court of Appeal has made it clear that it can prevent disclosure of a document in appropriate cases, just as it can prevent access to the Courtroom during a closed hearing.

In other words, access to documents is simply another strand of open justice.  Once again the Courts have reiterated that unless there is a good reason for not allowing disclosure of documents to a non-party, the general position is that access to those documents should be granted.

We have a long way to go before we catch up to the US, whereby non-parties are able to view documents online.  However, with the upcoming modernisation of the Court system, with the Courts and Tribunal Service moving towards a wider use of online options, it may not be outside of the realms of possibility that one day, journalists in the UK we will enjoy the same openness as their counterparts in the US.

Until that time, however, apply away!

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  • February 6, 2019 at 2:59 pm

    As a point of correction – BAT(UK) were a party to the original proceedings (one of the claimants against the government) and did not make this application for disclosure. The US based NGO referred to in the article is the Campaign for Tobacco-Free Kids. CTFK made the application themselves without representation.

    The original judicial review proceedings is titled BAT(UK) v SoS for Health. The application for disclosure by CTFK was an application within those proceedings and so does not have a separate title.

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