Blacker v The Law Society [2016] EWHC 947 (QB) (27 April 2016)

An application by a solicitor to restrain the Solicitors Regulation Authority (SRA) from disclosing documents to a third party pursuant to a Freedom of Information request was rejected by the High Court on the basis that it did not disclose a "serious issue" to be tried.

Background – Freedom of Information Act Request

The injunction application was made by Alan Blacker (AB), a solicitor who made the news in 2014 after a Crown Court judge criticised him for looking like a character from a Harry Potter film. (The defendant was named as the Law Society, although the facts concern the Society's independent regulatory arm, the SRA, and, accordingly, in this article we shall refer to the defendant as the SRA.)

A member of the public (referred to as YZ) made a Freedom of Information Act (FoIA) request to the SRA in relation to AB, as well as to a charity and company to which AB is linked. Notwithstanding that the SRA is not strictly bound by the FoIA, it has a voluntary "Freedom of Information Code of Practice" dating back to 2005, pursuant to which it acts as if the FoIA applies to it, where it is in the public interest to do so and subject to certain exceptions (including, for example, in respect of ongoing regulatory investigations).

YZ was unhappy with the SRA's initial response to the FoIA request, with the result that the SRA referred the matter to a Freedom of Information adjudicator. The adjudicator upheld YZ's request but only in relation to a narrow category of documents, and ruled that those documents should be redacted to remove 'out of scope' information and any of AB's sensitive personal data. The relevant documents were contained in six closed files.

The adjudicator's decision, along with a redacted schedule listing the documents to be disclosed to YZ, was published on the SRA's website without AB's knowledge and without his comments being sought beforehand. It was later discovered that the redaction was ineffectively done and could be reversed by anyone who downloaded the schedule. This attracted comment online, which resulted in AB finding out about the adjudicator's decision via a legal news website. The SRA subsequently sent AB copies of the documents which it proposed to disclose to YZ pursuant to the adjudicator's decision, and gave him 48 hours in which to provide comments.

The injunction application

AB sought an injunction restraining the SRA from releasing documents to YZ, and also sought delivery up of the six closed files, as well as three further open files relating to ongoing regulatory matters. He also asked for compensation of £50,000 for a breach of the Data Protection Act 1998 (DPA). The SRA in response sought to strike out AB's claim pursuant to CPR 3.4(2)(a) on the basis that it disclosed no arguable case or, in the alternative, that summary judgment be given in its favour pursuant to CPR 24.2, on the basis that AB's claim had no real prospect of success.

It was common ground between the parties that the conditions in American Cyanamid Co v Ethicon [1975] ACT 396 needed to be satisfied in order for an interim injunction to be granted, namely: (i) is there a serious issue to be tried, and (ii) if so, where does the balance of convenience lie?

In oral argument at the hearing, AB stated that the serious issue to be tried was the SRA's conduct in relation to the adjudicator's decision, and that the causes of action relied upon were a claim in damages for breach of the Data Protection Act, and Articles 6 (right to a fair trial) and 8 (right to respect for private and family life) of the Human Rights Act 1998 (HRA).

The learned judge held that, because the redacted documents which the adjudicator ruled should be disclosed to YZ contained no personal data (beyond that which is already publicly available), there could be no breach of the DPA. The judge acknowledged that AB's ultimate argument was that the SRA's compliance with the FoIA when it was not required to do so breached his rights but held that, by being a solicitor, AB agreed to be subject to regulation by the SRA, and the adoption by the SRA of a code of practice in 2005 could not now be the subject of a damages claim by a solicitor who was unhappy with its terms.

The learned judge found that AB's reliance on the HRA was misconceived. Article 6 was not engaged because there were no criminal or civil court proceedings under way in relation to the files in question. Further, the failure by the SRA to deal with the files in the manner sought by AB, or the SRA's failure to deliver them up, did not constitute an interference with his private or family life under Article 8. There was no private information contained in those files.

In respect of AB's claim for delivery up of the SRA's closed files (i.e. the files containing the documents requested by YZ), the Court held that the files were the property of the SRA and had been created in the course of carrying out its functions as the regulator of the profession. AB had no proprietary right in them and was not therefore entitled to have them delivered up.

The SRA had no intention of publishing or releasing to anyone the three open files (relating to ongoing matters) and they did not fall within the scope of the disclosure ordered by the adjudicator in any event. The SRA had a right to maintain such files as part of its role as regulator and AB had no claim to them whatsoever. There is a powerful public interest in professional regulators being entitled to keep confidential files relating to members of the relevant profession.

The judge concluded that there was no serious issue to be tried and, therefore, no question of where the balance of convenience would lie. AB's application therefore failed.

In relation to the SRA's application, the learned judge held that AB's claim should be struck out pursuant to CPR 3.4(2)(a), as it disclosed no reasonable grounds for bringing the claim. However, if he was wrong in this, the court would in any event have granted an application for summary judgment upon its defence pursuant to CPR 24.2(a)(i). Accordingly, the SRA's application succeeded.