Campbell v Tameside Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ACKNER,LORD JUSTICE O'CONNOR |
| Judgment Date | 29 April 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0429-2 |
| Docket Number | 82/0193 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 April 1982 |
[1982] EWCA Civ J0429-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
(MR. JUSTICE RUSSELL)
Royal Courts of Justice.
The Master of the Rolls
(Lord Denning)
Lord Justice Ackner and
Lord Justice O'Connor
82/0193
1981 C. No. 3815
MR. CHRISTOPHER ROSE, Q.C. and MR. L.R. PORTNOY (instructed by Messrs. Westbrook Ince& Co.) appeared on behalf of the Respondent.
MR. RICHARD CLEGG, Q.C. and MR. D. BRENNAN (instructed by Messrs. A.W. Mawor& Co.) appeared on behalf of the Appellant.
Joyce Campbell is a schoolteacher in her fifties. She is highly regarded by all. Yet whilst in the schoolroom she was violently attacked by an eleven-year old boy. She suffered severe injuries and has had to take early retirement in consequence. A solicitor has looked into her case and thinks she may have a cause of action against the local education authority: but he wishes to be sure of his ground before bringing proceedings. He wants to see the various reports about this boy: so as to know whether they did their duty by the teachers. So the solicitor has applied for preliminary discovery. That is now permitted by statute and by the rules. The solicitor's affidavit is in such clear terms that I quote it:
"From information which has come into my possession, there seems to be strong grounds to believe that the said child was of violent disposition and propensities and that the Defendants by their servants or agents knew of such disposition and propensities. The said child has been described to me as being known throughout the said school as a violent bully. I verily believe that a 'dossier' on the said child was being compiled in a notebook kept specially for that purpose, in which a teacher or teachers kept contemporaneous notes on the behaviour of the said child, which notes were for the use of an educational psychologist or psychologist or psychiatrist. I am informed that at least one psychologist or psychiatrist reported on the said child to the Defendants. I am informed that a special form, described as being green in colour, was completed with details of some of the behaviour of the said child and handed to the headmaster of the said School. It is further believed that a form of referral was prepared by the said headmaster for the use of the said psychologist or psychiatrist. In addition, I have been informed that a record known as the school log book will contain contemporaneous records of each and every physical assault perpetrated by the said child. I am further instructed that it is believed that a petition was presented by parents of children attending the said School to the Defendants or some servant or agent of theirs, which said petition is said to have prayed that the said child be not permitted to continue to attend the said School.
"In addition, I am instructed that the said child is believed to have spent some time attending a special school, at which establishment careful observations would be kept upon him, the results of which observations I verily believe will have been embodied in reports presently in the possession, custody and control of the Defendants".
The education authority object to the disclosure of any of their reports or documents relating to this boy. They have produced affidavits by the Director of Education, the acting head teacher, and the deputy head teacher of a school for maladjusted children, and an educational psychologist employed by the education authority. All these declare that it is in the public interest that these reports and documents should not be disclosed to Mrs. Campbell or her advisers. The theme running through all these affidavits is that the reports on the child are very confidential and that those who made them—if they realised that they might be used in legal proceedings—would be inhibited in making them as frankly as they should.
The district registrar in a careful and reasoned judgment upheld the education authority in their objection to discovery. Mr. Justice Russell took a different view. He ordered discovery. Now the education authority appeal to this court.
We have many cases about children in the care of local authorities. One side or the other ask to see the reports which the children's officers have made on the children. They are always confidential. Never, I think, have we ordered them to be disclosed. They are privileged—not because of their actual contents—but because as a class they should be kept confidential. We have always found that justice can be done in the individual case without compelling disclosure of these documents.
The first case was Re D (Infants) (1970) 1 Weekly Law Reports 599, which was approved by the House of Lords in D. v. National Society for the Prevention of Cruelty to Children (1978) Appeal Cases 171. Another is Gaskin v. Liverpool City Council (1980) 1 Weekly Law Reports 1549. The latest is Regina v. Birmingham City Council (19th February, 1982, not yet reported). In every case our task was to hold the balance between the interests involved. On the one hand the public interest in keeping the reports confidential. On the other hand the public interest in seeing that justice is done. Neilson v. Laugharne
Mr. Clegg, Q.C. for the education authority relied on those cases. But in addition he relied particularly on a recent case in this court of Neilson v. Laugharne (1981) 1 Queen's Bench 736. That was not a child case. It was a case where a man brought an action against the Chief Constable of Lancashire alleging that some police officers had wrongfully entered his house whilst he was away. The Chief Constable had held an investigation under section 49 of the Police Act 1964. He claimed privilege for all the statements taken for the purposes of that inquiry. This court upheld the claim. I myself said:
"In my opinion the statements taken in pursuance of section 49 are privileged from production in a way analogous to legal professional privilege, and child care privilege. This case bears a striking resemblance to the Gaskin case (1980) 1 W.L.R. 1549. It looks like a 'fishing expedition'". Hehir v. The Commissioner of Police for the Metropolis
That case of Neilson v. Laugharne was considered by the court a few weeks ago in Hehir v. The Commissioner of Police for the Metropolis. The court doubted its correctness but felt it was bound by it. The plaintiff in Hehir was arrested for a minor offence under the Vagrancy Act 1824. The charge was dismissed. He made a complaint against the police officers. An inquiry was held under section 49. His complaint was disallowed. Despite its disallowance, he issued a writ against the police for false imprisonment and malicious prosecution. When he went into the box, counsel for the police wished to cross-examine him on the statement he had made to the inquiry under section 49. This court, with obvious reluctance, held that the statement under section 49 could not be used to cross-examine him. I do not think that Neilson v. Laugharne compelled that result. This court was not referred to the line of cases where a man has made a statement in a confidential document and then afterwards goes into the witness box and gives evidence contrary to what he said in the confidential document. It has always been held that he can be cross-examined on the confidential document, in which case the whole document is to be made available, see North Australian Territory Co. v. Goldsborough Mort & Co. (1893) 2 Chancery 381; Burnell v. British Transport Commission (1956) 1 Queen's Bench 117; more fully in (1956) 2 Lloyd's Law Reports 569. Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (1974) Appeal Cases 405, in which Lord Cross of Chelsea said at page 434B:
"No doubt it will form part of the brief delivered to counsel for the commissioners and may help him to probe the appellants' evidence in cross-examination".
The reasoning behind it is that the maker of a confidential document can always waive the privilege which attached to it, or by his conduct becomes disentitled to it. When he goes into the box and gives evidence which is contrary to his previous statement—then the public interest in the administration of justice outweighs the public interest in keeping the document confidential. He can be cross-examined to show that his evidence in the box is not trustworthy.
I know that in the days of the old Crown privilege it was often said that it could not be waived. That is still correct when the documents are in the vital category spoken of by Lord Reid in Conway v. Rimmer (1968) Appeal Cases 910 at page 940. This category includes all those documents which must be kept top secret because the disclosure of them would be injurious to national defence or to diplomatic relations or the detection of crime (as the names of informers). But not where the documents come within Lord Reid's lower category. This category includes those documents which are kept confidential in order that subordinates should be frank and candid in their reports, or for any other good reason. In those cases the privilege can be waived by the maker and recipients of the confidential document. It was so held by Lord Cross of Chelsea in Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (1974) Appeal Cases 405 at page 439H, when he said:
"If any of them is in fact willing to give evidence, privilege in respect of any documents or information obtained from him will be waived".
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