For non-parties contemplating competition litigation, access to court documents from earlier proceedings can be an effective tool in the litigation armoury. A claim form or defence may give insights into a future case concerning similar conduct; a witness statement can provide factual detail that might otherwise take years of disclosure to uncover; and an expert report can shed light on the effects of anticompetitive conduct on a relevant market. But access to court documents does not only serve future litigants. It has a wider and more fundamental importance: open justice. As Lord Hewart CJ put it a century ago, “justice should not only be done, but should manifestly and undoubtedly be seen to be done.” Transparency allows the public to scrutinise the workings of the law, for better or for worse.
The principle of open justice does not enforce itself, however. It operates through procedural frameworks, and for non-parties seeking documents in competition proceedings, two are particularly relevant: paragraph 9.66 of the Competition Appeal Tribunal’s (“CAT”) Guide to Proceedings (2015), and rule 5.4C of the Civil Procedure Rules (“CPR”), which applies to claims, including competition claims, brought in the High Court.
2026 has brought important developments to both fora. In May, in a significant development in the CAT’s decisional practice, the CAT handed down its ruling in Sportradar v Football DataCo [2026] CAT 46 granting an application under paragraph 9.66, on which Geradin Partners acted for the applicant. And in the High Court, a new pilot scheme has been in force since January: Practice Direction 51ZH, which has widened the categories of documents that non-parties can access beyond those otherwise available under the CPR. With both regimes developing, this blog post takes stock of the scope of non-party entitlement to court documents.
Requesting documents in the CAT: paragraph 9.66 of the CAT’s Guide to Proceedings
Paragraph 9.66 of the CAT’s Guide to Proceedings provides that where a pleading, skeleton argument, witness statement or expert report is “referred to or quoted in open court”, the party who produced it “should be prepared to make a non-confidential version of that document available to a non-party upon request”. The non-party asks the producing party first; only if refused does it then formally apply to the CAT.
There had been very few reported rulings on the interpretation of paragraph 9.66. The CAT’s limited decisional practice had tended to construe that paragraph widely. For example:
- In Sainsbury’s v Mastercard [2016] CAT 6, where Visa sought Sainsbury’s trial documents from its interchange fee litigation against Mastercard, the CAT held that open justice was “fully engaged” once documents of this kind had been “read by the [CAT] and referred to in the course of proceedings in open court”, and ordered Sainsbury’s to hand those documents over to Visa, notwithstanding that Visa was defending very similar allegations brought by Sainsbury’s in the Commercial Court (paragraph 40).
- In Kent v Apple [2022] CAT 7, where the law firm Milberg sought the re-amended claim form and witness statement from the class representative in collective proceedings against Apple, it went further, holding that an applicant need not demonstrate any “special or particular interest” in the proceedings, and that there could be “no justification for any delay” in access once the documents had been aired in court (paragraph 4).
- In Gormsen v Meta, where law firm Hausfeld sought the amended claim form from the class representative in collective proceedings against Meta, the CAT not only ordered production of an amended claim form but made the resisting party pay the applicant’s costs, observing that the application “should not have been necessary” (paragraph 6).
The CAT’s decisional practice had therefore tended towards disclosure and refusal risked an adverse costs order. However, with the exception of Sainsbury’s, the CAT provided very little explanation of the basis for its decisions, and how those principles interacted with the developing case law outside of the CAT on the open justice principle.
Sportradar: putting paragraph 9.66 on a principled footing
However, the scope of paragraph 9.66 has now been put on a clearer footing following Sportradar. In that case, Altenar sought non-confidential copies of Sportradar’s claim form, defence, reply, skeleton argument, and a witness statement of a Sportradar executive, all referred to in the 2022 trial of the litigation between Sportradar and Football DataCo and others.
Sportradar objected to making the documents available on several grounds. It argued that because the proceedings had settled immediately after opening submissions, with no witnesses called and no judgment delivered, there was no judicial decision for the public to scrutinise, and the documents should be withheld. It also alleged that Altenar was seeking the documents in order to arm itself for regulatory complaints and litigation across multiple jurisdictions, against the backdrop of an ongoing separate dispute it had with Sportradar (paragraphs 15 to 16). Furthermore, Sportradar argued that, following the Supreme Court’s decision in Cape Intermediate Holdings v Dring [2019] UKSC 38 and the Court of Appeal’s clarification in In re HMP [2025] EWCA Civ 824, an applicant must explain how access would advance the open justice principle, and that an application made (on Sportradar’s case) for collateral purposes years after a settlement could not.
The CAT ruled in Altenar’s favour. It ordered that Sportradar should provide Altenar with non-confidential versions of four of the five documents requested.
The CAT held that the purpose of the application, and whether or not open justice would be served in making the order, are “highly material if not central” to any application. Consistent with Dring, the CAT said that an applicant must show some “good reason” or “legitimate interest” albeit that threshold is “low” (paragraph 29).
It then said that “in certain types of situations, the presumption is that production will serve open justice in the absence of countervailing factors”. For the documents most central to understanding a case – statements of case and skeleton arguments – access remains effectively automatic: the applicant “does not need to persuade” the CAT that production serves open justice, even years after the relevant hearing and even if that hearing did not result in a decision (paragraph 35). Access to a trial witness statement will arise once the witness has been called.
Beneath that hierarchy is a structured discretion the CAT articulated for the first time – the nature of the documents; the stage of the application (granted more readily during a hearing, but “may need more justification” long afterwards); how production advances open justice; the applicant’s motives; the burden on the producing party; confidentiality and privilege; and whether the documents are available by other means (paragraph 34). The CAT called this “a refinement of approach” (paragraph 32); in substance it is a principled map of how the CAT will decide such applications, with the core documents firmly at the accessible end of it, and with neither settlement, collateral purpose, nor a three-and-a-half-year gap defeating Altenar’s entitlement to the documents.
Costs in the CAT
Where a producing party’s refusal forces a non-party to apply to the CAT under paragraph 9.66, the CAT’s decisional practice makes clear that unnecessary delay or a lack of cooperation carries adverse costs consequences. In Gormsen, the CAT held that the paragraph 9.66 application “should not have been necessary” and ordered“that the Class Representative pay Hausfeld’s reasonable costs” (paragraph 6); in Jaguar Land Rover, the CAT found Jaguar’s resistance“deliberately uncooperative”, noted that it had“behaved unreasonably,” and ordered it to pay the costs of the application it had forced (paragraph 7); and in Sportradar, it ordered Sportradar to pay a reasonable and proportionate amount of Altenar’s costs.
That said, costs recovery has its limits too: in Sportradar, the CAT observed that these applications are meant to be short and inexpensive, and set the recoverable sum accordingly, albeit in that case the applicant had not submitted a costs schedule (paragraph 37).
Requesting documents in the High Court: CPR 5.4C and the principle of open justice
In the High Court, a non-party has two distinct routes to court documents: the procedural rules, and the constitutional principle of open justice itself.
Starting with the procedural rules, CPR 5.4C(1) provides a “general rule” that non-parties “may obtain” copies of a statement of case, judgment or order from the court records without permission. The courts have treated this rule generously. In Various Claimants v Mercedes-Benz [2025] EWHC 1931 (KB), where three interested parties sought unredacted statements of case in the vehicle emissions group litigation against Mercedes-Benz and other manufacturers, Constable J noted that the rule creates a “very clear default principle” that a non-party is entitled to unredacted statements of case; that the applicant’s reasons are “of little or no importance” unless the document is sought for an improper purpose; and that any restriction is a derogation from open justice, to be ordered only where necessary and proportionate and limited to the minimum incursion (paragraphs 21(1), (2) and (3)). On that basis, the Mercedes-Benz applicants obtained fully unredacted pleadings notwithstanding contested claims of commercial confidentiality.
For documents falling outside the CPR, the open justice principle takes over. In Dring, where an applicant on behalf of the Asbestos Victims Support Groups Forum sought documents from asbestos litigation against Cape that had settled after trial, the Supreme Court explained that the principle of open justice applies to all courts and tribunals exercising the judicial power of the state, and all of them have an inherent jurisdiction to determine what that principle requires in terms of access to documents placed before them. Crucially, the Supreme Court held that “[t]he extent of any access permitted by the court’s rules is not determinative (save to the extent that they may contain a valid prohibition)” (paragraph 41) and that “[t]here can be no doubt at all that the court rules are not exhaustive of the circumstances in which non-parties may be given access to court documents” (paragraph 34). The Court of Appeal recognised the same in In re HMP, observing that “[t]he open justice principle may also require” access to a “wider range of documents” than those prescribed by the CPR rules (paragraph 2). The difference under this second route is that the applicant has no prima facie entitlement: it must explain how access would advance the open justice principle, which the court then weighs against any risk of harm and the practicalities of production.
The direction of travel goes further still. Since 1 January 2026, the pilot scheme under Practice Direction 51ZH has extended the default position in three courts: the Commercial Court, the London Circuit Commercial Court and the Financial List. For written submissions (including skeleton arguments and written openings and closings), witness statements and expert reports “used or referred to at a hearing in public” (paragraph 7-8), the mechanism is now proactive rather than reactive: the producing party must file the document on CE-File within a defined window, and any person – including a non-party – may then obtain a copy from the public CE-File portal, without applying either to a party or to the court (paragraphs 10 and 12). That default is subject only to the court’s power to make an order restricting or withholding access. The accompanying Guidance Note describes the pilot as “a first step towards easier access to documents in the public domain”, reflecting concerns about public access expressed in Lady Hale’s judgment in Dring.
If the pilot continues past its expiry date of 31 December 2027, the High Court in practice offer something more generous still than the CAT approach: not merely access on request, but access by default, the relevant documents being available on a public register as a matter of course, subject only to a targeted order restricting them.
Looking forward
The two regimes in the CAT and High Court are aligning on the documentary hierarchy, even if they have travelled there from different routes:
- Statements of case and skeleton arguments: these sit at the top of the hierarchy in both regimes. In the CAT, access is near-automatic after Sportradar, where the CAT held that documents of this kind speak for themselves in open justice terms, such that an applicant need not show how production would promote open justice even where the application is made years after the event. In the High Court, non-parties are entitled to statements of case as of right under CPR 5.4C(1), and skeleton arguments and other written submissions are now presumptively available in the courts covered by Practice Direction 51ZH.
- Witness statements and expert reports: the two regimes are not identical, but may diverge less than first appears. The High Court pilot in Practice Direction 51ZH makes witness statements and expert reports “used or referred to at a hearing in public” presumptively available (paragraphs 7-8), with no separate inquiry into the applicant’s purpose. The CAT, by contrast, refused access to the trial witness statement sought in Sportradar. But the gap is narrower than it looks. Sportradar addressed only a trial witness statement. The CAT found that “[o]nce a witness has been called, parties should be ready to provide non-parties with copies of the witness statements, especially during a trial” (paragraph 33(3)), echoing CPR 32.13, under which a statement standing as evidence in chief is open to inspection “during the course of the trial”. However, the CAT did not grant access to the trial witness statement at issue in Sportradar, becausethe trial itself settled at openings, the witness was never called, and the applicant may have had other means to access the document. The CAT in Sportradar was not asked to address witness statements deployed at interlocutory hearings, whose makers are rarely called and which are deployed the moment they are relied upon in open court. Instead, the CAT’s approach has been to grant access to such statements even where the witness is not called: for instance, in Kent, where it granted a non-party access to a witness statement referred to at a case management conference. Similarly, in the case of expert reports, the CAT in Sportradar said that it will “generally not need to be persuaded” that providing them advances open justice when sought during the hearing or at the time of any ruling or judgment (paragraph 34(3)).
- Exhibits, bundles and everything else: below these categories sits all other material, such as exhibits, hearing bundles and disclosed documents, where the Dring balancing exercise applies with full rigour and the applicant must earn its access.
There are practical lessons on both sides. For prospective applicants, Sportradar gives non-parties a clear roadmap: the strongest applications will explain how the documents sought are necessary to understand the issues before the court and the parties’ positions on them – and, for statements of case and skeletons deployed in open court, that necessity will usually be self-evident. For parties to competition litigation, the lesson is starker: documents deployed in open court may one day be read by regulators, rivals and future claimants, and settlement offers no retrospective shield.
Note: Geradin Partners acted for Altenar in its successful paragraph 9.66 application against Sportradar.
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