For people who are not parties to a Hong Kong civil action, the only accessible court documents in the proceedings are the statement of case and any judgment or orders. 

After the landmark decision by the U.K. Supreme Court in Cape Intermediate Holdings Ltd v Dring (for an on behalf of Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, it is made clear that all English courts have an inherent jurisdiction to determine what the principle of open justice requires in terms of access to documents or other information placed before the court.

Claims were brought against an asbestos manufacturer, Cape Intermediate Holdings Limited, for, amongst others, negligence in the production of asbestos and providing false and misleading reassurance.  Voluminous documentation was produced for the trial, but the claims were settled before judgment was delivered.  The Asbestos Victims Support Group, a non-party to the original proceedings, applied to the Court for access to all documents which were to be used in the trial, which the applicant believed would contain information about the dangers of asbestos and research carried out within the industry.

Lady Hale, the President of the Supreme Court of the United Kingdom, said in the lead judgement that, the public should be allowed the parties’ written submissions and arguments, the documents placed before the court and referred to during the hearing.  That is not limited to those which the judge has read.

An applicant seeking access has to explain why he seeks it and how granting him/her access will advance the open justice principle, i.e. there is no right to be granted access.

The court has to then carry out a fact-specific balancing exercise, between (1) the purpose of the open justice principle and the potential value of the information in question in advancing that purpose, and (2) any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others.

Some examples of good reasons for denying access are: national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interest, and the protection of trade secrets and commercial confidentiality.

Though the principle of open justice was realized through a court decision, Lady Hale urged that bodies responsible for framing the court rules to give consideration to the questions of principle and practice raised by this case.

As Lady Hale said, “About the importance and universality of the principles of open justice there can be no argument.”  It will be interesting to see if this decision will be followed in other Common Law jurisdictions including Hong Kong.

For any enquiries related to this article, please contact Mr. Barry Hoy.