Anthony Dixon v North Bristol NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 07 December 2022 |
| Neutral Citation | [2022] EWHC 3127 (KB) |
| Docket Number | Case No: QB-2022-002007 |
| Court | King's Bench Division |
| Year | 2022 |
[2022] EWHC 3127 (KB)
THE HONOURABLE Mr Justice Nicklin
Case No: QB-2022-002007
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Simon Cheetham KC and Nicola Newbegin (instructed by Clyde & Co LLP) for the Claimant
Jeremy Hyam KC (instructed by DAC Beachcroft LLP) for the Defendant
Hearing date: 20 September 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties and their representatives by email and by release to The National Archives. The date and time for hand-down is deemed to be 2pm on 7 December 2022.
This is the second judgment in this claim. It deals with the Claimant's application for an interim injunction to restrain the Defendant from providing two documents to a limited category of persons.
A: Parties and background
The parties, the background to the litigation and the nature of the Claimant's claim are set out in the judgment I handed down (in private, on 19 July 2022 and in public on 26 July 2022) in which I refused the Claimant's application to be anonymised in the proceedings ( [2022] EWHC 1871 (QB)) (“the First Judgment”). I shall use the same definitions in this judgment. The Claimant did not appeal that decision, so that judgment identifies the parties.
The Order, dismissing the anonymity application, made directions requiring the Claimant to file and serve his finalised Particulars of Claim by 22 July 2022; the Defendant to file and serve an Acknowledgement of Service and any Defence by 5 August 2022; and for the Claimant to issue, file and serve any Application Notice and evidence in support seeking an interim injunction by 12 August 2022. The hearing of the interim injunction was fixed for 20 September 2022. The Defendant gave an undertaking that it would not disclose the material the subject of the interim injunction application until the Court had heard and determined the application.
B: The proposed disclosure by the Defendant
Some of the pre-action correspondence, in which the Defendant notified the Claimant of its intention to disclose certain documents, is set out in the First Judgment: [12]–[14]. On 13 June 2022, the Defendant's solicitors sent a detailed letter to the Claimant's solicitors explaining the Defendant's position as follows (“the Proposed Disclosure”):
“It is the Trust's intention to disclose both [Document X] and the MHPS outcome letter to the Solicitors for all Claimants bringing claims against the Trust in respect of care provided by Mr Dixon. The Trust remains of the view that both documents are disclosable in clinical negligence claims against the Trust, pursuant to CPR 31.6 following the commencement of a claim, and pursuant to CPR 31.16 in relation to claims in the pre-action protocol stage.”
The extent of the Proposed Disclosure, as defined in that letter, was to the solicitors to the relevant claimants. A point made by Mr Cheetham KC on behalf of the Claimant is that such disclosure is effectively also disclosure to the claimants themselves. Certainly, absent some unusual restriction being placed on the solicitors to prevent disclosure of the documents to their respective clients, Mr Cheetham must be correct. I will therefore treat the Proposed Disclosure as including disclosure to the claimants themselves.
C: The Claim
The Claimant alleges that the Proposed Disclosure would be (a) a breach of contract; (b) a breach of confidence and/or misuse of private information; and (c) a breach of the Claimant's data protection rights under the General Data Protection Regulation (“GDPR”) and Data Protection Act 2018. In his Particulars of Claim (which includes a Confidential Schedule), he contends that the Proposed Disclosure would be unlawful, in summary amounting to:
i) a breach of the express and implied terms of his contract of employment with the Defendant and/or a contract entered into in respect of the investigation under MHPS and generally;
ii) a breach of confidence, being an unauthorised use of the information contained in the MHPS outcome letter and Document X outside the purpose for which the information was collected;
iii) a misuse of private information, being an unjustified intrusion into the Claimant's privacy in circumstances where the disclosure would be to individuals and their representatives who were not the subject of any investigation; and
iv) a breach of the Data Protection Act 2018 and/or the General Data Protection Regulation (as modified under English law) (“GDPR”).
The Particulars of Claim also contain a free-standing claim that the Proposed Disclosure would be a breach of the Claimant's Article 8 rights. This claim has not been pursued in support of the injunction application, but it is under this claim that the Claimant has identified the particular harm or detriment that would be caused to him by the Proposed Disclosure as damage to his Article 8 rights; the right to practise and have access to his profession, the right to protect his professional reputation, and the protection of his correspondence. More generally as to damage, in his Particulars of Claim, the Claimant alleges that the Proposed Disclosure:
“… would cause serious damage, including irrecoverable reputational damage, as well as significant mental and physical distress to the Claimant, and his family, in particular to the Claimant's wife and the Claimant's elderly mother. It is also likely to damage the Claimant's mental and physical health.”
In terms of remedies, the Claimant seeks:
i) a declaration that (a) the MHPS outcome letter and Document X are “confidential in nature”; and (b) the Proposed Disclosure is unlawful;
ii) an injunction to restrain the Defendant from undertaking the Proposed Disclosure unless required or expressly permitted to do so by order of the Court; and
iii) an order pursuant to s.167 Data Protection Act 2018 (compliance order) and/or Article 79 GDPR (right to effective judicial remedy).
It is necessary to look at each of the causes of action relied upon by the Claimant in a little more detail. Before doing so, it is important to note what the CPR requires to be set out in the Particulars of Claim in respect of claims for breach of confidence and/or misuse of private information and/or data protection claims. CPR PD 53B provides:
“ Misuse of private or confidential information
8.1 In a claim for misuse of private information, the claimant must specify in the particulars of claim (in a confidential schedule if necessary to preserve privacy)—
(1) the information as to which the claimant claims to have (or to have had) a reasonable expectation of privacy;
(2) the facts and matters upon which the claimant relies in support of the contention that they had (or have) such a reasonable expectation;
(3) the use (or threatened use) of the information by the defendant which the claimant claims was (or would be) a misuse; and
(4) any facts and matters upon which the claimant relies in support of their contention that their rights not to have the specified information used by the defendant in the way alleged outweighed (or outweigh) any rights of the defendant to use the information in that manner.
8.2 In a claim for misuse of confidential information or breach of confidence, the claimant must specify in the particulars of claim (in a confidential schedule if necessary to preserve confidentiality) —
(1) the information said to be confidential;
(2) the facts and matters upon which the claimant relies in support of the contention that it was (or is) confidential information that the defendant held (or holds) under a duty or obligation of confidence;
(3) the use (or threatened use) of the information by the defendant which the claimant claims was (or would be) a misuse of the information or breach of that obligation.
Data Protection
9. In any claim for breach of any data protection legislation the claimant must specify in the particulars of claim—
(1) the legislation and the provision that the claimant alleges the defendant has breached;
(2) any specific data or acts of processing to which the claim relates;
(3) the specific acts or omissions said to amount to such a breach, and the claimant's grounds for that allegation; and
(4) the remedies which the claimant seeks.
(1) Breach of contract/Breach of confidence
The Claimant contends that there are express and/or implied terms as to confidentiality in both his employment contract and under the Maintaining High Professional Standards (“MHPS”) investigation process. Further, or alternatively, the Claimant contends that the circumstances are such that the Defendant is under an equitable duty of confidence and that the Proposed Disclosure would breach this duty.
MHPS contains express terms relating to confidentiality, which the Claimant contends have been incorporated into his employment contract with the Defendant:
i) Part 1, Paragraph 23 provides:
“Employers must maintain confidentiality at all times. No press notice should be issued, nor the name of the practitioner released, in regard to any investigation or hearing into disciplinary matters. The Employer should only confirm that an investigation or disciplinary hearing is underway.”
ii) Part 4, Paragraph 46 provides:
“Records must be kept, including a report detailing the capability issues, the practitioner's defence or mitigation, the action taken and the reasons for it. These records must be kept confidential and retained in accordance with the capability procedure and the Data Protection Act 1998. These records need to be made available to those with a legitimate call upon them, such as the practitioner, the Regulatory Body, or in response to a Direction from an Employment Tribunal.”
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Data Protection Rules In The Context Of Litigation Disclosure: Some High Court Guidance
...legislation and the disclosure of documents in connection with litigation in the English courts: Dixon v North Bristol NHS Trust [2022] EWHC 3127 (KB). This issue has caused some unease amongst litigants and practitioners since the issue of data protection was thrown into prominence by the ......