Durham County Council v D [2012] EWCA Civ 1654

As a child D had been a resident at a secure facility run by Durham County Council.  In 2007 D’s solicitors wrote to Durham County Council indicating the intention to make a claim for damages in respect of assaults alleged to have been committed by staff at the secure facility.  The letter of claim requested pre-action disclosure of D’s personal files pursuant to the Data Protection Act 1998.  Some of the documents were disclosed in redacted form and others (including the social care records) were not disclosed at all.

D sought the disclosure of un-redacted copies of various documents.  The dispute over the extent of the Durham County Council’s duty to disclose came before District Judge Fairclough.  D argued that other children were potential witnesses and that withholding their names was preventing him from having a fair trial.  However, the District Judge disagreed with this view and ordered that the documents should be redacted to remove the names of the children but not the names of the adults.  In making this judgement he noted concern about the processing of personal data in accordance with the Data Protection Act 1998 and that former residents might be stigmatised by the release of their names.

He gave parties permission to appeal his decision and the matter was then considered on appeal by His Honour Judge Armitage QC.  Durham County Council argued that it was wrong to consider the Data Protection Act 1998 and where disclosure is for the purpose of civil proceedings the court should only have to consider the Civil Procedure Rules.  It was also argued that Public Interest Immunity should apply to the identity of the other children.  In his judgment, Judge Armitage QC observed that there was no doubt that the primary purpose of the appeal was to secure access to the names and possibly addresses of potential witnesses amongst others who had been resident at the secure facility at the material time.  He referred to the tension between the Data Protection Act 1998 and the Civil Procedure Rules.  He concluded that District Judge Fairclough did not perform the balancing exercise required and in his judgement, the conclusion he reached was wrong.

The present appeal to the Court was therefore a second appeal. Permission for it was granted by Sir Scott Baker on the basis that the case raised “an important point of principle and practice in historic child abuse and other litigation and a definitive decision by the Court of Appeal is required”.

The court expressly acknowledged that legal practitioners and district judges do not approach the issues relating to disclosure in a consistent way.  The court also stated that confusion can arise as to whether the duty of disclosure is primarily one that arises under the Data Protection Act 1998 or one arising pursuant to the Civil Procedure Rules.  The court held 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 court was enabled and required under Part 31 of the Civil Procedure Rules to excuse disclosure or inspection on public interest grounds. In a case such as the instant one, it might be misleading to describe the issue as one of public interest immunity. The requisite balancing exercise, which depended upon the context of the particular litigation, was between a party’s right to a fair trial at common law and pursuant to the European Convention on Human Rights 1950 article 6 and the rights of his opponent or a non-party to privacy or confidentiality which might most conveniently be protected by article 8. It was a distraction to start with the 1998 Act, as the Act itself acknowledged.

A data controller was exempt under section 35 of the Data Protection Act 1998 from the non-disclosure provisions where disclosure was required in the context of litigation. Effectively, the court was left to determine the issue by applying the appropriate balancing exercise under the Civil Procedure Rules whereupon the court’s decision impacted upon the operation of disclosure under the 1998 Act. Public interest immunity would arise in some contexts. However, it was wrong to treat all cases in which a public authority sought exemption from a disclosure or inspection obligation on public interest grounds as being a case of public interest immunity in the strict sense. In the instant case, the disputed documents were not social work records, but were not dissimilar in nature and should attract the same approach.

The approach required that:

(a) obligations in relation to disclosure and inspection arose only when the “relevance” test was satisfied. Relevance could include “train of enquiry” points which were not merely fishing expeditions. That was a matter of fact, degree and proportionality;

(b) if the relevance test was satisfied, then it was for the party in possession of the document, or who would be adversely affected by its disclosure or inspection, to assert exemption from disclosure or inspection;

(c) 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 right might require protection. Consideration of competing Convention rights would generally be involved; the denial of disclosure or inspection was limited to circumstances where such denial was strictly necessary; and

(d) 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. Again, the limitation had to satisfy the test of strict necessity.

The judge should not have been distracted by the 1998 Act as if it imposed additional requirements. However, ultimately his approach addressed relevance and concluded with the balancing of “the prejudice to the applying party of being deprived of information against the prejudice to the third party as a result of the disclosure”. He applied a test of strict necessity, although on the basis that D had satisfied the test, whereas it had been for the local authority to establish that it was strictly necessary not to disclose.

The Council’s appeal was dismissed.  The court made an order with the provision that the identities of the non-parties were NOT to be disclosed beyond the parties and their legal advisors and that the information to be disclosed be used solely for the purpose of those proceedings.

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