Who owns court documents?

Court proceedings can generate a vast quantity of documents. These include applications, statements and, most importantly, judgments and orders.

Normally of course the court, the parties and their lawyers will have access to all of these documents, and no issue arises as to their ownership.

Sometimes, however, an issue does arise. In the context of family proceedings, this most commonly manifests itself with the desire of a party to show the documents to others, for example to demonstrate alleged bias on the part of the judge dealing with the case.

But who actually owns the documents, and thereby controls who may have or see them?

The question arose in a recent Court of Appeal case. The judgment of Lord Justice Peter Jackson in the case contains some important points upon the subject of ownership and control of court documents.

The court’s power

The first and most important point that he made is that “a court hearing family proceedings has the power to control the use to which documents filed for the purpose of the proceedings are put, and that the power extends to the withholding of documents from parties where that is necessary.”

However, this power to limit access to documents can only be used where it is strictly necessary. Obviously, fair justice usually requires all parties in a case to have access to all documents filed with the court, or prepared by the court.

Accordingly, the court will only restrict access to documents in extreme circumstances. As Lord Justice Jackson said, issues of this kind are only likely to arise in the gravest cases.

An example of how extreme the circumstance must be arose in this case. The case involved care proceedings concerning two sisters. The court found that their older brother is a predatory paedophile who had raped one of the girls. After pleading guilty to the rape of his own three year-old daughter he was serving a 21 year prison sentence.

The brother was made a party to the care proceedings. When the proceedings ended he sought copies of all of the documents in the case, including the court’s detailed findings. Fearing that he might pass the documents to other paedophiles in prison, the judge refused to allow him to have all of the documents. He appealed against this decision, but the Court of Appeal dismissed the appeal.

Ownership of documents

The next point that Lord Justice Jackson made was that, contrary to popular belief, a party does not ‘own’ documents filed with the court on their behalf, so that they cannot be deprived of them. As he said: “The document is nothing without the information it contains, and the information falls under the control of the court.”

This might come as a surprise to some. A party to a case does not even own a statement they prepared in connection with the case.

Lawyers and documents

Of course, if a party has a solicitor then the solicitor will have all of the documents relating to the case. Surely, the client can request the documents from their solicitor, and the solicitor must provide them?

Not so, explained Lord Justice Jackson. The solicitor owes a duty to the court that will override any duty to the client. Accordingly, a court order that a document is not to be disclosed or given to a client will bind the solicitor, and relieve the solicitor of any professional duty that would otherwise exist to provide the document to the client.

After the proceedings

And the last point that Lord Justice Jackson made deals with another popular misconception: that the court’s power to control possession of documents ends with the conclusion of the proceedings, so that once the case has ended, a party can do whatever they want with them.

Again, not so said Lord Justice Jackson. The court retains control even after the proceedings have ended.

Seek advice

The simple thing to take from all of this is that a party to family proceedings must follow the instructions of the court when it comes to obtaining or disseminating court documents. If in doubt, always seek legal advice.