DURHAM COUNTY COUNCIL V DUNN [2012] EWCA Civ 1654
FACTS:-
The Claimant was a resident at Aycliffe Young People's Centre in Newton Aycliffe (the Centre) between 1980 and 1984, which was run by Durham County Council (the Council). On 17 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. The letter included a request for the disclosure of certain documents as follows:-
1. The personal file of the claimant.
2. Personnel files of the alleged abuser, other members of staff and any other members of staff who were mentioned in the investigation report.
3. Day books throughout the period in question.
4. Punishment books throughout the period in question.
5. Medical Records throughout the period in question.
6. Any written complaints concerning the professional ability, competence, conduct or treatment methods of any servants or agents of yours at the Centre.
7. The result of, or report into, or other documentary evidence arising from any enquiry or investigation into the Centre.
8. Any Home Office Report or other enquiry into the Centre.
9. Any Social Service or other reports/records upon the management practices prevalent at the Centre.
10. Attendance registers.
11. Absconding/Truanting/Absence Registers.
12. Any other documents likely to be relevant to the issues between the parties.
On 25 March 2011, the claimant issued substantive proceedings against the Defendant. The Defendant’s had initially released the Claimant’s personal files, but had refused to disclose files relating to third parties. In November 2011 following standard disclosure, the Claimant’s solicitors applied for further disclosure. At that point, it was plain that they were approaching the matter under the Data Protection Act 1998. The Defendants were ordered to provide further disclosure relating to third parties, but that there should be redaction of the records. On appeal, that decision was overturned and the court ordered that all records should be disclosed as unredacted. The Council appealed to the Court of Appeal.
JUDGEMENT:-
Lord Justice Maurice Kay said that the appeal was concerned with the ambit of the Council's duty of disclosure. It was agreed by the parties that, at the moment, legal practitioners and District Judges did not all approach the issues in a consistent way. In particular, confusion had arisen as to whether the duty of disclosure was primarily one that arose under the Data Protection Act 1998 (DPA) or one arising pursuant to the Civil Procedure Rules (CPR).
Kay LJ considered the operation of the Data Protection Act 1998, in particular section 7 and section 35. He then considered the operation of the Civil Procedure Rules, Rule 31.10 and Rule 31.19 and the way in which the disclosure requests made by the Claimants had progressed.
Kay LJ said that the Claimant’s Letter of Claim referred to the DPA, although the list of documents so requested clearly fell outside that Act. When the issue of disclosure came before the court at first instance, the court erroneously approached the matters as if the DPA was the governing regime. On appeal, the judge analysed the issue before him as being the right or duty to withhold inspection pursuant to CPR 31.3(b), which he described as wide enough to include claims for legal professional privilege, public interest privilege/immunity and a statutory duty to protect data or to avoid a breach of a third party's Article 8 human rights.
Kay LJ said that it was misleading to refer to a duty to protect data as if it were a category of exemption from disclosure or inspection. The true position was that CPR31, read as a whole, enabled and required the court to excuse disclosure or inspection on public interest grounds. There was no longer any public interest immunity attaching to social services records. It was a distraction to start with the DPA. Section 35 exempted a data controller from the non-disclosure provisions where disclosure was required in the context of litigation. In effect, it left 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 impacted upon the operation of disclosure under the DPA. What did that approach require?
Lord Justice Munby agreed. He listed the history of disclosure cases from the family courts. He did not doubt that some social work records would still be covered by public interest immunity. Documents recording the identity of informers would be an obvious example, for example Re J (A Child: Disclosure) [2012] EWCA Civ 1204. However general statements that one saw in textbooks to the effect that social work records were covered by public interest immunity, should now be consigned to history."
He would add two points.
FACTS:-
The Claimant was a resident at Aycliffe Young People's Centre in Newton Aycliffe (the Centre) between 1980 and 1984, which was run by Durham County Council (the Council). On 17 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. The letter included a request for the disclosure of certain documents as follows:-
1. The personal file of the claimant.
2. Personnel files of the alleged abuser, other members of staff and any other members of staff who were mentioned in the investigation report.
3. Day books throughout the period in question.
4. Punishment books throughout the period in question.
5. Medical Records throughout the period in question.
6. Any written complaints concerning the professional ability, competence, conduct or treatment methods of any servants or agents of yours at the Centre.
7. The result of, or report into, or other documentary evidence arising from any enquiry or investigation into the Centre.
8. Any Home Office Report or other enquiry into the Centre.
9. Any Social Service or other reports/records upon the management practices prevalent at the Centre.
10. Attendance registers.
11. Absconding/Truanting/Absence Registers.
12. Any other documents likely to be relevant to the issues between the parties.
On 25 March 2011, the claimant issued substantive proceedings against the Defendant. The Defendant’s had initially released the Claimant’s personal files, but had refused to disclose files relating to third parties. In November 2011 following standard disclosure, the Claimant’s solicitors applied for further disclosure. At that point, it was plain that they were approaching the matter under the Data Protection Act 1998. The Defendants were ordered to provide further disclosure relating to third parties, but that there should be redaction of the records. On appeal, that decision was overturned and the court ordered that all records should be disclosed as unredacted. The Council appealed to the Court of Appeal.
JUDGEMENT:-
Lord Justice Maurice Kay said that the appeal was concerned with the ambit of the Council's duty of disclosure. It was agreed by the parties that, at the moment, legal practitioners and District Judges did not all approach the issues in a consistent way. In particular, confusion had arisen as to whether the duty of disclosure was primarily one that arose under the Data Protection Act 1998 (DPA) or one arising pursuant to the Civil Procedure Rules (CPR).
Kay LJ considered the operation of the Data Protection Act 1998, in particular section 7 and section 35. He then considered the operation of the Civil Procedure Rules, Rule 31.10 and Rule 31.19 and the way in which the disclosure requests made by the Claimants had progressed.
Kay LJ said that the Claimant’s Letter of Claim referred to the DPA, although the list of documents so requested clearly fell outside that Act. When the issue of disclosure came before the court at first instance, the court erroneously approached the matters as if the DPA was the governing regime. On appeal, the judge analysed the issue before him as being the right or duty to withhold inspection pursuant to CPR 31.3(b), which he described as wide enough to include claims for legal professional privilege, public interest privilege/immunity and a statutory duty to protect data or to avoid a breach of a third party's Article 8 human rights.
Kay LJ said that it was misleading to refer to a duty to protect data as if it were a category of exemption from disclosure or inspection. The true position was that CPR31, read as a whole, enabled and required the court to excuse disclosure or inspection on public interest grounds. There was no longer any public interest immunity attaching to social services records. It was a distraction to start with the DPA. Section 35 exempted a data controller from the non-disclosure provisions where disclosure was required in the context of litigation. In effect, it left 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 impacted upon the operation of disclosure under the DPA. What did that approach require?
- First, obligations in relation to disclosure and inspection arose only when the relevance test was satisfied. Relevance could include "train of inquiry" points which were not merely fishing expeditions. This was a matter of fact, degree and proportionality.
- Secondly, if the relevance test was satisfied, it was 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 fell 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 might require protection. It would generally involve a consideration of competing ECHR rights.
- Fourthly, the denial of disclosure or inspection was limited to circumstances where such denial was strictly necessary.
- Fifth, in some cases the balance might need to be struck by a limited or restricted order which respected a protected interest by such things as redaction, confidentiality rings, anonymity in the proceedings or other such order. Again, the limitation or restriction had to satisfy the test of strict necessity.
Lord Justice Munby agreed. He listed the history of disclosure cases from the family courts. He did not doubt that some social work records would still be covered by public interest immunity. Documents recording the identity of informers would be an obvious example, for example Re J (A Child: Disclosure) [2012] EWCA Civ 1204. However general statements that one saw in textbooks to the effect that social work records were covered by public interest immunity, should now be consigned to history."
He would add two points.
- The first was that, in determining whether or not documents that were otherwise relevant should be withheld from disclosure in family proceedings, precisely the same principles operated and precisely the same Convention approach was applied in cases involving a claim to public interest immunity as in cases where disclosure was sought to be withheld on some other ground. Therefore it was not immediately obvious what advantage there was in first determining whether or not public interest immunity applied.
- The second point was that, particularly in the light of the Convention jurisprudence, disclosure was never a simply binary question: yes or no. There might be circumstances, and it might be thought that the present was just such a case, where a proper evaluation and weighing of the various interests would lead to the conclusion that (i) there should be disclosure but (ii) the disclosure needed to be subject to safeguards.