Case: Dian AO v Davis Frankel &amp; Mead (a firm) [2005] 1 All ER 1074
Outcome: referred to
In Dian AO v Davis Frankel &amp; Mead (a firm) [2005] 1 All ER 1074, a non-party applied to the court for permission to inspect and copy the court file in proceedings which had been concluded by compromise some eight years earlier. The non-party made the application in the hope of obtaining information which would be of use to it in litigation which was on foot in the British Virgin Islands. 50 Moore-Bick J granted access to affidavits and pleadings notwithstanding the substantial delay. Of course, he did so under the relevant English rules of court but a number of his observations are in my view applicable to the regime established under O 46 r 6. 51 First, the principle of open justice is primarily concerned with monitoring the decision-making process as it takes place, not with reviewing the process long after the event: Dian at [30]. 52 Second, an application for permission to use the court file as a source of potentially useful information to assist in other litigation does not engage the principle of open justice. Nevertheless, one consequence of the application of the principle of open justice is that persons who are present in Court may obtain access to information that they may be able to use to their advantage in other litigation. But this is merely a consequence of doing justice in public. It is not one of its primary objects: Dian at [31]. 53 Third, the rules do not contemplate permission to inspect the file as a whole. The documents which an applicant wishes to inspect must be identified with reasonable precision: Dian at [32]. 59 In his speech in Home Office v Harman , Lord Diplock referred at 303 to the inevitable side effect of administering justice in open court and the corollary that persons present in court may use documents that are read out in court for purposes other than the attainment of justice in the particular case. The observations of Moore-Bick J in Dian at [31] are to the same effect. 64 Here, the application is not made in furtherance of the principle of open justice. It uses, as a springboard, the corollary to which Moore-Bick J referred in Dian , namely that persons present during a court hearing may learn of information they can use to their advantage. But in truth it goes further because it seeks "access to justice" based upon the modern approach to commercial litigation with its emphasis upon creation, and preservation of large volumes of written material, much of which is not read out in open court. Finkelstein J referred to this in ACCC v ABB at [4] [5]. 75 So too in Dian , the documents were sought for the purpose of obtaining information of potential use in litigation that was already on foot. It was not to determine whether a case may be launched, and if so, by whom. 76 Mr Cobden submitted that I ought not to grant access to Ms Ball's affidavits. It is true that Ms Ball made copies of sound recordings in circumstances in which she obtained the protection of s 104 of the Copyright Act 1968 (Cth). However, I do not think that the grant of access to those parts of her affidavit which were read in evidence would put her in breach of that provision, or in breach of the implied undertakings pursuant to which she obtained and used the material.