Garry Dover and Jonathan Clay look at the key lessons for local authorities from a Court of Appeal ruling on document disclosure in civil litigation.Local authority clients have to manage vast amounts of documentation especially in social care settings.
LAs receive requests for documentation from individual service users and from solicitors. These requests are often made under the Data Protection Act 1998 (DPA) provisions even where this is in the context of intended legal proceedings.
Authorities are faced with competing tensions to comply with a legitimate request for documentation and also to protect the confidentiality of persons referred to in the documents who are not a party to the proceedings, as well as the care of the service user.
How does this case law impact on authorities' management of requests for litigation disclosure and discharge of their legal duty to the courts and service users?
Case law
The recent authority on the issue of disclosure in civil litigation claims is Dunn v Durham County Council [2012] EWCA Civ. 1654 where the Court of Appeal considered a LA’s duty of disclosure of records.
Facts
- The claimant alleged he had been assaulted by staff at a centre for young people run by Durham County Council (DCC).
- The claimant’s solicitors letter of claim requested disclosure of documents under the provisions of the Data Protection Act 1998 (DPA).
- DCC prepared copies of redacted files which were provided to the claimant’s solicitors with the names of some children (other service users) and adults (staff) removed.
- At a case management conference the claimant’s solicitors requested unredacted files and argued s35 DPA: this allows a party to be exempt from the provisions of DPA where litigation is intended or in proceedings. This was refused by the district judge.
- The claimant appealed to the circuit judge arguing that under DPA, section 35 unredacted disclosure was necessary.
- The defendant argued against disclosure and that the request was governed by the disclosure rules of the Civil Procedure Rules (CPR), Part 31.
- The circuit judge (HHJ Armitage in Manchester County Court) allowed the claimant’s appeal on the basis that DPA, section 35 imposed a test of necessity. It was for the applying party to show that the document was needed for a section 35 purpose.
- Judge Armitage accepted that such purpose had been established because the residents may be material witnesses and their names should be disclosed.
- The decision was appealed by DCC to the Court of Appeal.
Court of Appeal judgment
This was a unanimous decision. The leading judgment is by Lord Justice Kay.
It was held in essence that the circuit judge made the right decision but for the wrong reasons. The correct test was a balancing exercise between CPR duties of disclosure and the European Convention on Human Rights (ECHR), as enacted in English law in the Human Rights Act.
LJ Kay commented:
- It was "unfortunate that the dispute about disclosure had been prolonged and distorted by references to the DPA".
- It was also misleading to describe the issue as one of public interest immunity (PII).
- Obligations in relation to disclosure and inspection arise only when the relevance test, under the CPR Part 31, has been passed.
- This is a matter of fact, degree and proportionality.
- Any dispute between the parties on disclosure falls to be determined by a balancing exercise having regard to the right to a fair trial at common law and under Article 6 (ECHR) and the right of an opponent or non-party to privacy and confidentiality under Article 8.
- The denial of disclosure or inspection is limited to circumstances where such denial is strictly necessary. The onus of establishing necessity is upon the party refusing to provide disclosure or inspection.
- This includes a "train of enquiry" which is not merely a "fishing" expedition.
- The circuit judge conducted a balancing exercise and applied a test of necessity. However, he was wrong to place the burden on the claimant rather than the defendant and was "distracted by the DPA" arguments.
- The order should include a provision that the identities of non-parties in the records are not disclosed beyond the parties to the proceedings and their legal advisers and the documents be used solely for the purpose of those proceedings.
LJ Kay addressed in further detail the issue of PII. He commented "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".
The documents in Dunn were not strictly social work records but they were not dissimilar and should attract the same approach.
LJ Munby expanded on this in his judgment. This comments on the development of judicial thought on the principle of PII, how this previously attached to social work records and how this is not now the case and present law reflects a change in social emphasis.
Social work records may still attract PII but only in the particular circumstances of a given case and not automatically because of their mere existence.
Comment
Dunn involved a social services case of physical assault but will have application to all requests for disclosure of records where litigation is intended and is particularly relevant to issues that arise in claims involving social care, including fostering and adoption.
LAs will receive various requests often in unclear form citing DPA provisions. LAs still have to decide whether a request for documentation is one which is appropriate under DPA or CPR depending upon the circumstances of the request.
If in doubt it may be appropriate to seek clarification from the requesting person, especially a claimant solicitor.
If the request is a CPR request (even where not directly referred to as such) then Dunn will apply.
LAs, or their appointed solicitors, will then have to consider the documents requested in the context of CPR disclosure rules:
- Standard disclosure test of relevance to the proceedings (CPR 31.6).
- Party in possession of the documents can still withhold production of these (CPR 31.19).
- A court can determine the issue on the application of a party (CPR 31.19).
Relevance
We suggest that in social care cases, involving physical and/or sexual exploitation at least, that a broad view be taken of this.
We consider that all of a service user’s records are potentially relevant to determine issues of Bolam negligence and to give context and understanding to arguments of causation.
Redaction may still be necessary. However the burden of establishing ‘necessity’, after Dunn, is on the party with possession of the documents.
The test of ‘necessity’ under Dunn is a high one and LAs will not be able to blank out names simply because a person is a non-party. There must be some other cogent and compelling reason.
In practice, LAs can insist on disclosure being subject to the terms of a ‘Dunn’ undertaking ie limiting sight of documents to specific classes of persons for the purposes of the case only.
If the above can be agreed then LAs can achieve costs savings in not having to deal with unnecessary redaction of records or consequential applications for non-redacted disclosure.
In light of Dunn, we should expect claimants’ solicitors to frame their requests for disclosure more accurately and avoid reference to a DPA request. They may even refer to Dunn as the relevant authority and offer the undertaking referred to by LJ Kay.
DPA requests
LAs will still receive requests for documentation that are not within the context of an actual or intended civil law claim. These requests may come from individual service users or others acting on their behalf, including solicitors.
Where this is the case the request should be dealt with under the DPA by the authority’s Information Officer.
In this context issues of redaction of third party details will still be relevant.
As we have seen in Dunn, solicitors have asked for DPA disclosure where a claim is intended. This is misplaced and probably driven by a wish to get early documentation at minimal cost because of the DPA disclosure fee of £10.
If in doubt we suggest seeking clarification from the requesting party especially where that party is a solicitor.
DPA fines
Concern has been raised over the level of fines imposed by the Information Commissioner’s Office (ICO) for breach of the DPA.
There are reported cases of fines being imposed on LAs and NHS from £70,000 to £150,000.
None of the cases are in the context of a response to standard disclosure or pre-action disclosure in a civil law claim.
All of the cases reviewed involve negligent management or control of documents eg:
- Patient records being left at a former NHS site.
- Losing DVDs containing confidential disciplinary information.
- Details of a child in care being sent to the wrong person.
- Social worker leaving sensitive case documents in a plastic bag on a train.
If a complaint was made to the ICO for breach of the DPA in the context of properly disclosed records in a civil law claim the LA would have a defence under DPA section 35.
Conclusion
- Dunn is a Court of Appeal decision. It will have general application to all civil litigation claims and will not be confined to the particular circumstances of that case.
- Dunn does not displace LA’s ability to withhold documents that are not relevant.
- The onus is on the party holding the documents to satisfy a court that withholding them or giving inspection in a redacted form isnecessary. The test is high.
- LJ Kay’s suggested undertaking in Dunn gives assurance to an LA that it can give disclosure and inspection in a way that restricts the use of the documents provided.
- In a civil claim, or intended claim, for damages CPR and Human Rights Act considerations are the key and not the Data Protection Act.
Garry Dover and Jonathan Clay are partners at Berrymans Lace Mawer.