Friday 18 January 2013 by Peter Garsden

In a groundbreaking Court of Appeal case, a distinguished panel of appeal judges (Lord Justices Kay and Munby) decided that the practice of redacting social care records was not usually necessary where litigation under civil procedure rules was being conducted. The judgment departed from reasoning in both lower courts, in that it was based upon a balance between Articles 6 (right to a fair trial) and 8 (privacy) of the European Convention on Human Rights.

The case involved the abuse of a child in the care of Newton Aycliffe care home in the north-east between 28 and 30 years ago, where there were many contemporary records of alleged assaults and complaints made by the client with the names of other potentially corroborative resident witnesses. The names of the other boys were redacted. This meant that the defendant authority had an advantage. They could interview and discard the witnesses without telling us, and we would never know.

When we reached the disclosure stage the defendants objected to providing any third-party names, in reliance upon the Data Protection Act 1998 (the 1998 act). They argued successfully before the district judge that the details should remain secret on the grounds that, even in later life (they would now be adults), it would be insensitive to disclose their former life in care, simply to benefit the claimant's legal case. We appealed to the county court judge and won. The names should have been disclosed. The probative value of the evidence prevailed.

In the county court, both parties and the judge relied upon a mixture of CPR 31.3 (the right of a party to withhold inspection of documents at the disclosure stage by inserting a description in the appropriate section of the list of documents, where 'the party... has a right or duty to withhold inspection') with overtones of Public Interest Immunity (CPR 31.19), and Section 35 of the 1998 act. Whilst that act gives a clear exemption:

'(2) Personal data are exempt from the non-disclosure provisions where the disclosure is necessary -

(a) for the purposes of, or in connection with, any legal proceedings (including prospective legal proceedings),

or (b) for the purpose of obtaining legal advice… .'

it was clear that once legal proceedings had been started, the CPRs prevailed. The White Book misleadingly refers to PII, which Munby LJ remarked was inapplicable to childcare cases such as this.

In terms of the documents and identities of parties which had been redacted, Kay LJ held: 'My conclusion is that the necessity test is satisfied... The claimant needs to know the identity of those who may have relevant information and evidence and who may support his claim directly or indirectly or undermine a relevant aspect of the defendant's case... Provided the information is used solely for the purpose of this litigation... no prejudice should occur.'

Although there are strict restrictions in CPR upon using evidence in any case outside of the litigation, with possible consequence of contempt of court, and the restrictions of CPR 31.22, the court imposed concurrent restrictions prohibiting the use of the documents 'beyond the parties and their legal advisers and that the information to be disclosed be used solely for the purposes of those proceedings until further order of the county court'.

In terms of the necessity for the claimant to see the unredacted material, and balancing exercise under human rights legislation, Kay LJ held: 'First, obligations in relation to disclosure and inspection arise only when the relevance test is satisfied... Secondly... 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... 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 [author's emphasis].

'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.'

Mumby LJ discussed the history of disclosure of records in the context of care proceedings from his vast experience in the Family Division, which makes it quite clear that, in the last 30 years, the court's attitude to disclosure of care records has come full circle, and moved from secrecy to transparency - 'We are a world away from 1970 or even 1989.'

He did, however, make the point that the court was not ordering the disclosure of all records in all cases: 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'.

Conclusions

1. Where proceedings are issued or contemplated, and the evidence which the claimant wants to see passes the "necessity" test, then the holders of records should supply unredacted records.

2. The judgment does not affect those cases where social service departments wish to redact information, in order to protect the personal data of subjects outside of the court arena. Where solicitors request records, however for the purposes of litigation, unredacted copies should be supplied. In view of Section 35 of the Data Protection Act 1998, however, record holders have a discretion to supply unredacted copies in appropriate cases.

3. This judgment can be used by claimants and defendants alike where, for example, the holder of the records is not a party to the litigation, for example where the child was in the care of a third-party Local Authority.

4. It is arguable that this judgment extends to other types of records such as police, hospital, and GP Records.

5. When one considers how much time and expense is incurred by record redactors nationwide solely for the purpose of litigation, it has the potential to save cash-strapped local authorities many thousands of pounds.