Dunn v Durham County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Munby,Lord Justice Tomlinson |
| Judgment Date | 13 December 2012 |
| Neutral Citation | [2012] EWCA Civ 1654 |
| Docket Number | Case No: B3/2012/0850 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 December 2012 |
[2012] EWCA Civ 1654
Lord Justice Maurice Kay, Vice President Of The Court Of Appeal, Civil Division
Lord Justice Munby
And
Lord Justice Tomlinson
Case No: B3/2012/0850
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
HHJ ARMITAGE QC
Ref: 1IQ16936
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Steven Ford QC (instructed by DWF LLP) for the Appellant
Ms Barbara Connolly QC and Mr William Chapman (instructed by Abney Garsden Mcdonald Solicitors) for the Respondent
Hearing date : 6 November 2012
In recent years, legal developments have made it easier for claimants to pursue civil actions based on allegations of historic physical or sexual abuse. For example, local authorities and other potential defendants can more easily incur vicarious liability for violent or sexually abusive assaults committed by their employees against children in care: Lister v Hesley Hall Ltd [2002] 1 AC 213; [2001] UKHL 22. Most significantly, previous difficulties regarding limitation periods have been eased by A v Hoare [2008] 1 AC 844; [2008] UKHL 6. The present case is an example of these developments. The claimant was a resident at Aycliffe Young People's Centre in Newton Aycliffe (the Centre) between 1980 and 1984. The Centre was the responsibility of Durham County Council (the Council). On 17 December 2007, the claimant's solicitors wrote to the Council intimating a claim for damages in respect of assaults alleged to have been committed by staff at the Centre when he was there in the early 1980s. The letter included a request for the disclosure of certain documents. Some documents were disclosed in redacted form. On 25 March 2011, the claimant issued these proceedings. This appeal is concerned with the ambit of the Council's duty of disclosure. It is a second appeal for which permission has been granted because it raises important issues of a kind that will arise in other cases. Moreover, it is common ground that, at the moment, legal practitioners and District Judges do not all approach the issues in a consistent way. In particular, confusion can arise as to whether the duty of disclosure is primarily one that arises under the Data Protection Act 1998 ( DPA) or one arising pursuant to the Civil Procedure Rules (CPR). The procedural history of this case illustrates the problem. Before turning to that history, I shall set out the relevant provisions of the DPA and the CPR.
The DPA
By section 7(1)(c) of the DPA, subject to various provisions, an individual is entitled
"to have communicated to him in an intelligible form –
(i) the information constituting any personal data of which that individual is the data subject, and
(ii) any information available to the data controller as to the source of those data …"
The information must be requested in writing and a modest fee is payable: section 1(2).
Third party interests are protected by subsections (4) and (5):
"(4) Where a data controller cannot comply with the request without disclosing information relating to another individual who can be identified from that information, he is not obliged to comply with the request unless –
(a) the other individual has consented to the disclosure of the information to the person making the request, or
(b) it is reasonable in all the circumstances to comply with the request without the consent of the other individual.
(5) In subsection (4) the reference to information relating to another individual includes a reference to information identifying that individual as the source of the information sought by the request; and that subsection is not to be construed as excusing a data controller from communicating so much of the information sought by the request as can be communicated without disclosing the identity of the other individual concerned, whether by the omission of names or other identifying particulars or otherwise."
Section 7(9) provides a judicial remedy where a data controller fails to comply with a request for information in breach of these provisions. The procedure is further addressed in section 15.
Section 35 then provides:
"(1) Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court.
(2) Personal data are exempt from the non-disclosure provisions where the disclosure is necessary –
(a) for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings),
(b) for the purpose of obtaining legal advice,
or is otherwise necessary for the purpose of establishing, exercising or defending legal rights."
The CPR
The provisions governing standard disclosure under the CPR are contained in Part 31. Rule 31.10(2) provides for the service of lists of documents. Rule 31.10(4) provides:
"The list must indicate –
(a) those documents in respect of which the party claims a right or duty to withhold inspection …"
Rule 31.19 provides:
"(1) A person may apply, without notice, for an order permitting him to withhold disclosure of a document on the ground that disclosure would damage the public interest."
Such a person must make a statement in writing that he has such a right or duty and setting out the grounds on which it is claimed, rule 31.19(3). A party may apply to the court to decide whether the claim should be upheld: rule 31.19(5). The court may require the person seeking to withhold disclosure or inspection to produce the document to the court: rule 31.19(6)(a). The court may also invite any person, whether or not a party, to make representations: rule 31.19(6)(b). Finally, rule 31.19(8) provides:
"This Part does not affect any rule of law which permits or requires a document to be withheld from disclosure or inspection on the ground that its disclosure or inspection would damage the public interest."
Procedural history
On 17 December 2007 the claimant's solicitors wrote to the Council intimating the claim. The factual allegations were briefly summarised as follows:
"Mr Dunn was sent to Newton Aycliffe between 1981 and 1984. Whilst at Collingwood House, a senior Care Worker called Mr Morgan was violent towards him on six or seven occasions. He was then transferred to the Special Unit. Whilst there he was brutalised on several occasions by Mr Wilkinson and another member of staff both inside and outside the Special Isolation Cell. Additionally he witnessed abuse of other boys in a violent way on approximately 50 occasions."
The letter went on to particularise the claim "without prejudice to any legal proceedings". It also sought disclosure of documents in the following terms:
"At this stage of the enquiries we would expect the following documents to be in existence. Please send us copies:
1. The personal file of our client. We refer you to the Data Protection Act 1998.
2. Personnel files of the alleged abuser (S), Mr Wilkinson, Mr Morgan, and any other members of staff who were mentioned in the investigation report.
3. Day books throughout the period in question.
4. Punishment books throughout the period in question.
5. Medical Records throughout the period in question.
6. Any written complaints concerning the professional ability, competence, conduct or treatment methods of any servants or agents of yours at the home.
7. The result of, or report into, or other documentary evidence arising from any enquiry or investigation into the home.
8. Any Home Office Report or other enquiry into the home.
9. Any Social Service or other reports/records upon the management practices prevalent at your home.
10. Attendance registers.
11. Absconding/Truanting/Absence Registers.
12. Any other documents likely to be relevant to the issues between the parties."
The reference to "the investigation report" followed an earlier reference in the letter to "a large scale investigation into Newton Aycliffe [which] was critical of the negligent and inappropriate management styles prevalent when our client was a resident".
We have not seen all the subsequent correspondence but its nature can be gleaned from the following. On 16 April 2008, the Council's solicitors responded to the letter of 17 December 2007. The letter included these passages:
"We do have your client's personal records which we are preparing for disclosure and will send to you as soon as they have been redacted …
The files of Mr Wilkinson and Mr Morgan can only be disclosed with their permission or an Order of the Court. We do not have their permission for disclosure so that you will need to make application to the Court for an Order on the basis that such files will be provided to you in redacted form and that you will meet the costs of both the application and the preparation for disclosure."
At that time the Council's solicitors were asserting a limitation defence. They wrote again on 19 May 2008 stating that social care records should be available shortly; that there was no obligation to release documents which were not relevant to the claim; and that:
"We do not accept your arguments in relation to the personnel records. Whilst we note your reference to the Data Protection Act it is necessary for the Court to balance the needs of competing public interests of the individual's human rights and the interests of justice in your client accessing potentially relevant material."
It is plain from this correspondence that both parties were focussing upon the DPA.
The claim form was issued on 25 March 2011. It alleged assaults and systemic negligence. It named Mr Morgan and Mr...
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