In Moss v Upper Tribunal & ors [2024] EWCA Civ 1414, the CA issued guidance to be followed when dealing with a request by a non-party for access to written submissions relating to a case heard in the Upper Tribunal.
A non-party does not have the right to see every document referred to in every case. The first step therefore is for the person seeking access to explain why he seeks it and how granting him access will advance the open justice principle. That it is a low threshold, at least where what is being sought are copies of skeleton arguments or written submissions which are central to an understanding of the case.
If there is a good reason, it is then necessary to consider any countervailing factors, including the risk of any harm or prejudice that may be caused by the disclosure of the documents to a non-party. There is also the issue of the practicalities and the proportionality of granting the request. For example, the longer the delay, the greater the chances will be that a request for disclosure by a non-party will be rejected on proportionality grounds.
The Court then made three general observations about good practice in the UT regarding skeleton arguments and written submissions:
It is sensible that, in the first instance, non-parties should where practicable seek such documents directly from the party which has created them;
In the event of objections or difficulties, the non-party should make an application for the documents to the UT, which should be done on notice to the parties;
If such an application is made, the party or parties who object to disclosure will then have an opportunity of setting out the reasons for their objection. Those should also be provided to the non-party, so that he or she can, if necessary, comment upon them. If the basis of the objection is the confidentiality or sensitivity of the material in question, then of course the details should not be provided to the non-party.
The Court concluded by noting that access to documents by non-parties in the civil courts was currently being considered by the Civil Procedure Rules Committee and that, although no similar consideration was being given to the subject by the Tribunals Practice Committee, it was to be hoped that that was not the case for much longer.
A transcript of the judgment can be found here.
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