[2012] EWCA Civ 1654

Practice and procedure – other

Summary

Between 1980 and 1984, the Claimant was a resident at Aycliffe Young People's Centre in Newton Aycliffe which fell within the responsibility of Durham County Council. In December 2007, the Claimant's solicitors wrote to the Council intimating a claim for damages in respect of assaults alleged to have been committed by staff at the Centre when he was there in the early 1980s and requesting disclosure of certain documents. That request referred explicitly to the Data Protection Act 1998. Some documents were disclosed in redacted form. Others, including the Claimant’s social care records were not disclosed at all.

Proceedings were issued, the claim was allocated to the multi-track and standard disclosure was ordered. The Claimant sought the disclosure of un-redacted copies of various documents, some of which he had already been provided with in redacted form. The dispute over the extent of the Council’s duty to disclose the documents came before District Judge Fairclough in the context of a case management conference. District Judge Fairclough concluded that the Defendant was entitled to disclose redacted copies. In reaching this decision, the District Judge focused on the DPA 1998. HHJ Armitage QC then considered the application on appeal. In allowing the appeal, he referred to the tension between the DPA 1998 and the Civil Procedure rules, and concluded that the proper approach is:

"(i) to concentrate on the application of the Civil Procedure Rules, which are specific to the task in hand, and which require disclosure of relevant documents. In the present case there is no doubt/issue that the documents are relevant and thus disclosable and liable to be inspected.

(ii) to consider whether the applying party needs the redacted data for a section 35 (2a) and/or (b) purpose. In the present case the claim is supported by adequate evidence without the redacted material, but that material may lead to further evidence supporting and/or undermining either sides case and thus aid fair disposal of the claim.

(iii) where the documents contain information which, by references to third parties, give rise to a relevant train of enquiry supporting the receiving party's case or undermining the possessor's case, to take into account that third party's rights under the [DPA] are or may be engaged (depending on the precise data held in relation to the third party and the form of it – the latter for the purpose of deciding whether the [DPA] applies to it at all) and the legislature's preference for protecting third party data.

(iv) to take into account also that even if rights under the [DPA] are not engaged, the revelation of the information to the Claimant and possibly to a wider audience may well be against the third party's wishes and interests and have the potential to cause harm.

(v) balance the prejudice to the applying party of being deprived of information against the prejudice to the third party as a result of the disclosure."

Permission for a second appeal before the Court of Appeal was granted. The Court of Appeal expressly acknowledged that legal practitioners and District Judges do not all approach the issues relating to disclosure in a consistent way and, in particular, confusion can arise as to whether the duty of disclosure is primarily one that arises under the Data Protection Act 1998 (DPA) or one arising pursuant to the Civil Procedure Rules (CPR).

In giving judgment, Lord Justice Maurice Kay noted that it was unfortunate that the original letter from the Claimant’s solicitor had referred to the DPA 1998. The witness statements in the application before District Judge Fairclough also referred to the DPA rather than to Part 31 of the CPR. However, the Vice President found that the District Judge had erred in treating the DPA as the governing regime. Whilst the District Judge had proceeded to analyse the issue by reference to CPR Part 31, he had referred to a duty to protect data as if it were a category of exemption from disclosure or inspection under CPR 31.3 (b) and this was misleading.

Maurice Kay VP concluded that:

"21… The true position is that CPR31, read as a whole, enables and requires the court to excuse disclosure or inspection on public interest grounds. In a case such as the present one, it may be misleading to describe the issue as one of public interest immunity (a point to which I shall return). The requisite balancing exercise is between, on the one hand, a party's right to a fair trial at common law and pursuant to Article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) and, on the other hand, the rights of his opponent or a non-party to privacy or confidentiality which may most conveniently be protected through the lens of Article 8. It is a distraction to start with the DPA, as the Act itself acknowledges. Section 35 exempts a data controller from the non-disclosure provisions where disclosure is required in the context of litigation. In effect, it leaves it to the court to determine the issue by the application of the appropriate balancing exercise under the umbrella of the CPR, whereupon the court's decision impacts upon the operation of disclosure under the DPA.

22. When I refer to ‘the appropriate balancing exercise’, I mean appropriate in the context of the particular litigation. This brings me back to public interest immunity. It will clearly arise in some contexts, the clearest example being civil litigation with national security implications: Al-Rawi v Security Service [2012] 1 AC 531; [2011] UKSC 34. However it is wrong to treat all cases in which a public authority seeks exemption from a disclosure or inspection obligation on public interest grounds as being cases of public interest immunity in the strict sense. Thus in care proceedings, the law has moved on from the approach taken in the later decades of the twentieth century to the point where, in Re R (Case: Disclosure: Nature of Proceedings) [2002] 1 FLR 775, Charles J was able to say (at page 777):

‘… general statements that one sees in textbooks and hears that social work records are covered by public interest immunity, which is a widely stated class claim, should now be consigned to history.’

I do not propose to dwell on this history. It is discussed in the following judgment of Munby LJ which I have read in draft and with which I agree. The disputed documents in the present case are not social work records in the strict sense but they are not dissimilar in nature and, in my view, they should attract the same approach.

23. What does that approach require? First, obligations in relation to disclosure and inspection arise only when the relevance test is satisfied. Relevance can include "train of inquiry" points which are not merely fishing expeditions. This is a matter of fact, degree and proportionality. Secondly, if the relevance test is satisfied, it is for the party or person in possession of the document or who would be adversely affected by its disclosure or inspection to assert exemption from disclosure or inspection. Thirdly, any ensuing dispute falls to be determined ultimately by a balancing exercise, having regard to the fair trial rights of the party seeking disclosure or inspection and the privacy or confidentiality rights of the other party and any person whose rights may require protection. It will generally involve a consideration of competing ECHR rights. Fourthly, the denial of disclosure or inspection is limited to circumstances where such denial is strictly necessary. Fifthly, in some cases the balance may need to be struck by a limited or restricted order which respects a protected interest by such things as redaction, confidentiality rings, anonymity in the proceedings or other such order. Again, the limitation or restriction must satisfy the test of strict necessity."

Munby LJ, concurring, set out the evolution of the history of disclosure within public law children’s proceedings. Whilst he noted that the question of how exactly PII applied within such proceedings was an interesting and important one to which the answer was not immediately apparent, he agreed with the proposition advanced by Charles J in Re R (Care: Disclosure: Nature of Proceedings) and set out by Maurice Kay VP that "general statements that one sees in textbooks and hears that social work records are covered by public interest immunity, which is a widely stated class claim, should now be consigned to history," continuing that:

"45. The reality now in the Family Division is that disputes about the ambit of disclosure, whether in relation to social work records or other types of document, are framed in terms of the need to identify, evaluate and weigh the various Convention rights that are in play in the particular case: typically Article 6 and Article 8 but also on occasions Articles 2, 3 and 10. Examples can be found both in Re L (Care: Assessment: Fair Trial) [2002] EWHC 1379 (Fam), [2002] 2 FLR 730, and in Re B (Disclosure to Other Parties) [2001] 2 FLR 1017, to which Ms Connolly also took us. Recent examples of the same approach can be found in the decisions of the Court of Appeal in A Local Authority v A [2009] EWCA Civ 1057, [2010] 2 FLR 1757, where Articles 2 and 3 were engaged as well as Articles 6 and 8, and Re J (A Child: Disclosure) [2012] EWCA Civ 1204, another case where Article 3 was engaged.

46. Re B (Disclosure to Other Parties) [2001] 2 FLR 1017 was a care case where there was a dispute as to whether one of the fathers involved in the proceedings should have access to certain documents, including psychiatric reports, relating to the mother, her husband and the children. I held that he should not. However, I emphasised (para 89) that:

‘Although, as I have acknowledged, the class of cases in which it may be appropriate to restrict a litigant's access to documents is somewhat wider than has hitherto been recognised, it remains the fact, in my judgment, that such cases will remain very much the exception and not the rule. It remains the fact that all such cases require the most anxious, rigorous and vigilant scrutiny. It is for those who seek to restrain the disclosure of papers to a litigant to make good their claim and to demonstrate with precision exactly which documents or classes of documents require to be withheld. The burden on them is a heavy one. Only if the case for non-disclosure is convincingly and compellingly demonstrated will an order be made. No such order should be made unless the situation imperatively demands it. No such order should extend any further than is necessary. The test, at the end of the day, is one of strict necessity. In most cases the needs of a fair trial will demand that there be no restrictions on disclosure. Even if a case for restrictions is made out, the restrictions must go no further than is strictly necessary.’

So far as I am aware, this approach has never been challenged and has often been followed. Indeed, the passage I have just quoted has twice been approved by the Court of Appeal: Re B, R and C (Children) [2002] EWCA Civ 1825, para 29, and Re J (A Child: Disclosure) [2012] EWCA Civ 1204, paras 49, 50.

47. I might add that although there has been recent discussion in Family Division case law about the applicability of public interest immunity to police child protection records, I cannot recall any occasion during my nine years in the Division when any question of public interest immunity was ever raised before me in relation to local authority or other social work records.

48. In these circumstances I would respectfully suggest that the treatment of this important topic in the White Book is so succinct as to be inadvertently misleading.

49. I add two points. The first is that, in determining whether or not documents that are otherwise relevant should be withheld from disclosure in family proceedings, precisely the same principles seemingly operate and precisely the same Convention approach is applied in cases involving a claim to public interest immunity as in cases where disclosure is sought to be withheld on some other ground: see Re J (A Child: Disclosure) [2012] EWCA Civ 120 4, paras 46-60. So it is not immediately obvious what advantage there is in first determining whether or not public interest immunity applies.

50. The second point is that, particularly in the light of the Convention jurisprudence, disclosure is never a simply binary question: yes or no. There may be circumstances, and it might be thought that the present is just such a case, where a proper evaluation and weighing of the various interests will lead to the conclusion that (i) there should be disclosure but (ii) the disclosure needs to be subject to safeguards. For example, safeguards limiting the use that may be made of the documents and, in particular, safeguards designed to ensure that the release into the public domain of intensely personal information about third parties is strictly limited and permitted only if it has first been anonymised. Disclosure of third party personal data is permissible only if there are what the Strasbourg court in Z v Finland (1998) 25 EHRR 373, paragraph 103, referred to as "effective and adequate safeguards against abuse." An example of an order imposing such safeguards can be found in A Health Authority v X (Discovery: Medical Conduct) [2001] 2 FLR 673, 699 (appeal dismissed A Health Authority v X [2001] EWCA Civ 2014, [2002] 1 FLR 1045). I agree, therefore, with what the Vice President has suggested in paragraph 25 above [i.e. a provision that the identities of non-parties be not disclosed beyond the parties and their legal advisors and that the information to be disclosed be used solely for the purpose of those proceedings until further order of the County Court]

On the facts, the Council’s appeal was rejected.

Comment

As the Court itself noted in this decision, there are an increasing number of civil claims brought in respect of historic allegations of abuse. This decision is a welcome clarification that when considering disclosure in such cases, the central issue is always whether the criteria under CPR Part 31 are met, even in circumstances where the DPA 1998 may also apply or indeed have been relied upon at a pre-action stage.

The relevance of this decision goes wider than this, however. The rules upon disclosure in the Court of Protection Rules Part 16 were discussed by McFarlane J (as he then was) in Enfield LBC v SA, FA and KA [2010] EWHC 196 (Admin) [2010] COPLR Con Vol 362. In that decision, whilst McFarlane noted that there was no direct equivalent to the duty of full and frank disclosure applicable in proceedings relating to children and that the Part 16 rules were modelled upon those contained in CPR Part 31, he held (at paragraph 58) that there could “be no justification for there being a difference of this degree between the family court and the Court of Protection in fact-finding cases of this type where really the process and the issues are essentially identical whether the vulnerable complainant is a young child or an incapacitated adult. For the future in such cases in the Court of Protection it would seem justified for the court to make an order for ‘specific disclosure’ under COPR 2007, r 133(3) requiring all parties to give ‘full and frank disclosure’ of all relevant material.”

Taking the Enfield case together with the Dunn case and the recent Supreme Court decision in In the matter of A (a child) [2012] UKSC 60, it is absolutely clear that when proceeding in the Court of Protection, providing that the requirement of relevance is met, disclosure should only properly be resisted where strictly necessary. The approach of the Courts would suggest that the threshold for establishing such necessity has been set relatively high and recourse to blanket arguments as to the class of documentation will not be met with approval. Conversely, it is also clear that the Courts will be very alive to the possible consequences of such disclosure, and to the possibility that safeguards will be required to ensure that the use of any information disclosed is carefully controlled.