Mr Graham Dring v Cape Distribution Ltd, Cape Intermediate Holdings Ltd Concept 70 Ltd (and Others) and Another (Interested parties)

This written judgment is final and it is directed that no transcript shall be obtained of it.

Hearing: 9, 10 and 12 October 2017

FULL JUDGMENT

Introduction

Lord Diplock in Home Office v Harman [1983] AC 280 at 303C 1 said (in a quotation from Jeremy Bentham and Lord Shaw of Dunfermline):

"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".

If one were, however, to consider a court in which there was a right for the public to scrutinise every detail of every case, for any purpose without limit, one can readily see that many would fear to venture into it with their business secrets, their family disputes, their most intimate personal details. Every person from businesses with valuable commercial trade information to vulnerable persons would risk losing more – whether financially or in personal terms – than justice might seem to them to be worth.

One must not therefore reach for an intellectually comfortable, but over-generalised, belief that 'openness is always and necessarily for the best'. It is more nuanced than that. The law and the rules of court have developed to provide a framework for ensuring that a balance is struck between openness to the public, and the protection of the core function of the court which is the doing of justice in the case before it. Cape for example here argued that "open justice" must not be seen as the answer to each and every application for access to court records. There is a judicial process under the court rules and the decision is made accordingly, and not by blindly following a principle without regard to the facts of a given case. That is why in this case I must approach the case on its own facts, whilst applying the underlying rules and principles.

This judgment deals with significant questions as to a member of the public's rights of access to documents filed on the records of the court which include material relating to the history and development of knowledge in the 20 ^th century about the risks of asbestos.

As is by now well understood, exposure to inhaled asbestos can cause terminal illness, as well as disability. The extent to which society adapted its outlook towards the risks of asbestos in the 20 ^th century is evidenced by the long history of case law, reports and articles which paint the public picture of what was understood to be the case in terms of risks and reasonable safety requirements when handling asbestos-containing products.

The impact of asbestos related disease in this country (I confine myself to this country but the wider story of asbestos is a global one) in legal terms includes the large number of claims for damages for injury and death caused by wrongful asbestos exposure, often by employers who are covered by insurance dating back several decades. It also includes secondary victim claims, such as the child of an asbestos worker parent, who goes on to develop mesothelioma decades after the parent's death, and where the exposure during childhood was from asbestos fibres clinging to the overalls of the parent on their return home at the end of each working day.

When one looks at asbestos-related torts one often has to consider quite historic material, and to consider what the extent of knowledge at the material time was about the risks of exposure. It is in that context that the material contained in the files which are the subject matter of this application must be seen.

In this case, the documents in question to which Mr Dring seeks access were in court for the purposes of a lengthy trial conducted by Picken J, which in broad terms raised questions about what was known, and when, about the product safety of asbestos by the best known manufacturer of the product (Cape and its connected companies). It was litigation brought by insurers. This was referred to as the Product Liability litigation to distinguish it from a separate claim, with which I do not concern myself here but which was heard at the same trial. The documents comprise the trial bundles (one of which, bundle D, was supplied 'on line' at trial via a document management system and not on paper), the skeletons, submissions and daily transcripts which were provided to the judge. Also sought are statements of case to the extent not already provided. Bundle D comprised the totality of the parties' disclosure documents whether or not deployed at trial. The other bundles were 'core' bundles and only contained documents actually relied on at the trial.

Unusually (and I suspect uniquely in the history of asbestos litigation), the disclosure exercise involved the putting together of extensive quantities of historic material and records relating to asbestos safety and regulation in a way which one can safely take it would have been disproportionate in a run-of-the-mill asbestos claim. This claim was large enough to justify such expenditure and time. Mr Isted for Cape in his first witness statement gave a succinct summary of the litigation at para. 10:

"In the Product Liability claims, the insurers alleged that the employees had been exposed to asbestos dust when working with, or in the vicinity of others working with, 'Asbestolux' and 'Marinite' boards (asbestos insulation boards which had been manufactured and supplied by members of the Cape group of companies). The principal allegation was that Cape and/or the relevant subsidiary company manufacturing 'Asbestolux' and 'Marinite' boards had failed adequately to warn of the risks arising from occupational asbestos exposure." and at 19:

"Over the course of two weeks, expert evidence was given by Mr Martin Stear, for the Claimants, and by Professor Sir Alasdair Breckenridge and Professor Roger Wiley for Cape… Following the conclusion of the trial, but before any judgment had been handed down, the Product Liability claims and the CDL claim settled."

And at 18 in his second statement:

"As part of the negotiated settlement, an arrangement was reached whereby the legal representatives acting for the Claimants in the Product Liability and CDL claims would destroy their hard copy bundles (or would, in the alternative, return their hard copy bundles to their clients) and their access to the electronic trial bundle would be withdrawn. The purpose of this, so far as Cape was concerned, was to ensure that their confidential documents were not used in an unauthorised manner or placed in the public domain without their knowledge."

I will not go into detail of the pleadings in the underlying case but an example averment which highlights the flavour of...