Openness and transparency are central to the doing of justice. This applies to all tribunals exercising judicial power, whether criminal, civil or otherwise. As philosopher Jeremy Bentham once said: "Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial." The principle enables there to be public confidence in the system.

The internet, modern communications and computers have transformed litigation. In Cape Intermediate Holdings v Dring [2019], there were commercial court proceedings against asbestos manufacturers, seeking contribution to mesothelioma claims paid out to employees. After a 6 week trial, the case settled. The question was what documents produced in, or generated by, the proceedings should be made available to a body assisting those suffering from asbestos-related diseases and their families, and also involved in asbestos lobbying and safety. There was a trial bundle consisting of 5,000 documents in 17 lever arch files, and other documents disclosed in the proceedings available on an electronic platform.

The issues were (1) the scope of the court rule governing the production of documents from court records, Civil Procedure Rules 5.4 C; (2) whether the court had an inherent jurisdiction to order access; and (3) if so its scope and how it should be exercised.

The court only keeps records for its own purposes. The ruling said: "… one would expect that the court record of any civil case would include, at the very least, the claim form and the judgments or orders which resulted from that claim. One would not expect that it would contain all the evidence which had been put before the court." The public must be able (i) to scrutinise the way in which courts decide cases; (ii) to understand how justice is administered "… as well as why decisions are taken" and (iii) "to understand the issues and the evidence adduced in support of the parties' cases…. Often, documents are not read out. It is difficult, if not impossible, in many cases, especially complicated … cases, to know what is going on unless you have access to the written material." What was argued in a previous case may be relevant to its value as a precedent.

The Supreme Court decided on (1) and (2) that the court had inherent jurisdiction to make orders to carry into effect the principle of open justice, unconstrained by CPR 5.4, or what was kept in court records. This includes documents referred to in skeleton arguments, submissions or witness statements, documents not even referred to in open court, and documents not even read by the judge.

As for (3), discretion, it said: "… the court has to carry out a fact-specific balancing exercise, taking into account what is practical and proportionate." On the one hand will be "the purpose of the open justice principle and the potential value of the information in question in advancing that purpose". It is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle. The media may need access so that the public can be informed of what has happened and why. Possible victims of wrongdoing might need access so that justice can be done for them, in the UK, or elsewhere, whether in court or arbitration. In civil cases, documents disclosed under compulsion and subsequently deployed at trial may still have to be produced.

There will be balanced "any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others". Access might be denied for example, to protect national security, children or vulnerable adults, privacy, trade secrets, and commercial confidentiality. The Supreme Court remitted to the High Court how the discretion was to be exercised on the particular facts.

The judgment decides that production is not constrained by the procedural rules which govern civil and criminal proceedings. In the absence of new rules, the detail remains to be hammered out in future in discretionary decisions on very different facts. In the meantime applicants will face the barrier of an application to court, and the risk of adverse costs orders.

The Supreme Court urged "the bodies responsible for framing the court rules in each part of the United Kingdom to give consideration to the questions of principle and practice" raised by the case.

New rules should provide a basic minimum transparency to everyone, regardless of resources, and without the need for application to the court. The courts do not charge for entry. Charging would be a step backwards. The rules should require disclosure of defined documents, supplemented with documents ordered by the court in the course of proceedings, without the need for any application. They could be posted on the internet. The rules should also provide for an application by a non-party, which might be necessary on facts such as those in Cape, where the need for access may not be so clear. Those could include cost consequences.

The decision is a step forwards. It is now up to the rule makers to devise a system which in practice will deliver open justice.

Steven Gee QC is a barrister at Monckton Chambers.