Sylvia Henry v News Group Newspapers Ltd Whittington Hospital NHS Trust (First Respondent) Commissioner of Police of the Metropolis (Second Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eady |
| Judgment Date | 26 May 2011 |
| Neutral Citation | [2011] EWHC 1364 (QB) |
| Court | Queen's Bench Division |
| Date | 26 May 2011 |
| Docket Number | Case No: HQ09D04958 |
[2011] EWHC 1364 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Eady
Case No: HQ09D04958
and
and
Adam Wolanski (instructed by Farrer & Co) for the Defendant
Clodagh Bradley (instructed by Bevan Brittan LLP) for the First Respondent
Rachel Kapila (instructed by Metropolitan Police Solicitors) for the Second Respondent
Hearing dates: 13 April & 10 May 2011
The background against which these applications are made, under CPR 31.17, is the libel claim brought by Ms Henry against News Group Newspapers Ltd following a campaign in The Sun in 2008 making serious allegations about her conduct as a social worker in the months prior to the death Peter Connelly in August 2007. There is a defence of justification in relation to alleged acts or omissions on her part between 11 December 2006 and 24 January 2007.
News Group Newspapers Ltd now seeks third party disclosure against the Whittington Hospital NHS Trust and the Commissioner of Police of the Metropolis with a view to assisting its defence.
The terms of CPR 31.17 need to be carefully borne in mind throughout:
"(1) This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings.
(2) The application must be supported by evidence.
(3) The court may make an order under this rule only where–
(a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and
(b) disclosure is necessary in order to dispose fairly of the claim or to save costs.
(4) An order under this rule must–
(a) specify the documents or the classes of documents which the respondent must disclose; and
(b) require the respondent, when making disclosure, to specify any of those documents–
(i) which are no longer in his control; or
(ii) in respect of which he claims a right or duty to withhold inspection.
(5) Such an order may–
(a) require the respondent to indicate what has happened to any documents which are no longer in his control; and
(b) specify the time and place for disclosure and inspection."
It would thus seem to be the case that it would not justify such disclosure if documents in a certain category appeared to assist the case of the applicant's adversary. An application will only succeed if the documents in question assist the applicant's case or go to undermine that of one of his adversaries.
It is for the applicant to establish not only "relevance" in that sense, as contemplated by sub-rule 3(a), but also "necessity" as required by 3(b).
The court will be aware throughout of the exceptional and intrusive nature of this jurisdiction. It should never be regarded as a matter of routine. The conditions for making an order, as identified above, will need to be strictly fulfilled. The court will always need to be wary of categories which are loosely or unnecessarily broadly defined and to be alert for requests which appear to be of a "fishing" nature.
Since the hearing began, towards the end of last term, the issues have somewhat narrowed so far as the Commissioner is concerned – not least because of voluntary disclosure which was made shortly thereafter.
There are now remaining in issue three categories of documents:
i) the Internal Management Reviews (IMRs) carried out in 2007 and 2009 in so far as they relate to the period between 11 December 2006 and 24 January 2007;
ii) notes of interviews conducted for the purpose of the IMRs with DC Slade, DS Lesley, DS Tonks, DC O'Brien and DI McMorrin, in so far as those interviews concerned the decisions made regarding Peter Connelly in the period from 11 December 2006 to 24 January 2007;
iii) correspondence, memoranda and notes of discussions and meetings between police staff and staff of the London Borough of Haringey concerning Peter Connelly in so far as they relate to the period between 11 December 2006 and 24 January 2007.
I shall address these in turn.
i) The Internal Management Reviews
It was argued on behalf of the Commissioner that it was doubtful whether these documents fell within the terms of sub-rule 3(a) but that, in any event, the Applicant has not established the necessity for such disclosure in order to dispose fairly of the claim or to save costs.
In addition, reliance was placed on a general public interest argument in relation to such documents as a category. The purpose of such reports is to be used for internal purposes with a view to learning lessons and improving the ways in which the police force fulfils its responsibilities. It is said that those who contribute to the IMR process do so on the understanding that their contributions and the content of any subsequent report would remain confidential. This leads to a freer exchange of frank and open views. If there was an apprehension that such communications might later be published, this would be likely to have an inhibiting effect.
Reference was made to Taylor v Anderton [1995] 1 WLR 447 where it was held by the Court of Appeal that reports and associated working papers prepared during investigations into police conduct, under the supervision of what was then the...
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R the Good Law Project Ltd v Secretary of State for Health and Social Care
...order. The unusual nature of this has been referred to in different cases, including by Eady J in Henry v News Group Newspapers Ltd [2011] EWHC 1364 (QB) who described the “exceptional and intrusive nature of this jurisdiction”. In that claim a newspaper organisation sought third party dis......