Three Rivers District Council and Another v Bank of England (No. 5)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Tomlinson |
| Judgment Date | 08 November 2002 |
| Neutral Citation | [2002] EWHC 2309 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: 1993 Folio No.1309 |
| Date | 08 November 2002 |
[2002] EWHC 2309 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
COMMERCIAL COURT
The Honourable Mr Justice Tomlinson
Case No: 1993 Folio No.1309
Lord Neill QC, David Mildon QC and Barry Iaacs (instructed by Lovells) for the Claimants
Nicholas Stadlen QC and Bankim Thanki (instructed by Freshfields Bruckhaus Deringer) for the Defendant
Charles Hollander QC and Sarah Lee ( instructed by the Treasury Solicitor), for HM Treasury
Jonathan Crow (instructed by the Treasury Solicitor for the Secretary of State for Foreign Affairs)
Hearing dates: 4 and 11 October 2002
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Tomlinson
In my judgment handed down on 31 May 2002 I did not consider necessity under CPR 31.17 (3)(b) although I noted in paragraph 83 that it is a jurisdictional threshold. I did however express the view that I hoped that it would be recognised that there can be no sensible objection to disclosure of substantial parts of the archive. In that latter regard I had already indicated that, subject to any particular points that might arise in relation to particular classes or sub-classes of documents, I regarded it as appropriate to exercise my discretion in favour of disclosure.
In the event no one has addressed argument to me to the effect that, in relation to the bulk of the material identified in the order which I then made, disclosure is not necessary in order fairly to dispose of the claim. By the same token, it has not been suggested that I should not exercise my discretion in favour of disclosure. HM Treasury have not regarded it as appropriate for them to consent to an order. They point out that it is for the court to be satisfied that the prerequisites have been fulfilled and that disclosure is necessary. Very helpfully however they have limited their submissions to certain discrete matters and have addressed no arguments on necessity. Very largely for the reasons set out in my earlier judgment I have no doubt that disclosure of documents which I have already held satisfy the test of potential relevance contained in CPR 31.17 (3)(a) is in principle necessary in order fairly to dispose of the claim.
I have not found it necessary to inspect any of the underlying documents in order to ascertain what the parties have for shorthand called actual as opposed to potential relevance. I note that this is permissible where there is an application under CPR 31.19 (1). However no such application has been made in relation to the material which I am presently considering. Whilst I need not express any final view on the matter, I do not see any scope within the context of the enquiry required by CPR 31.17 for an inspection to ascertain actual relevance when it is potential relevance which is the jurisdictional threshold which must be overcome. In the particular context of this case where the canvas of the claim is vast and changing, it would be most inappropriate that the court should be the arbiter of relevance unaided by the parties, and in particular by the claimants who are the artists working on that canvas.
So far as concerns those few instances where confidentiality issues are raised, I have directed myself by reference to the decisions in Science Research Council v Nasse [980] AC 1028 and Wallace Smith Trust v Deloitte Haskins Sells [1997] 1 WLR 267. Those authorities establish:—
i) Where confidentiality is raised, it is not a ground for PII in itself, although it may be an ingredient of or relevant to a claim for PII;
ii) If the disclosure of the documents in question is shown to be necessary in the interests of the litigation, then that need overrides confidentiality;
iii) However, in such a case, the court will be concerned to see whether the needs of the litigation can otherwise be satisfied, eg, by considering redactions, disclosure from other sources or other appropriate means.
I do not consider that Article 8 of the European Convention on Human Rights calls for separate treatment. Subject to specific instances where it is agreed that, for example, the identity of informants is irrelevant to the issues in the trial and that their anonymity should be preserved, my conclusions thus far on relevance and necessity demonstrate that any incursion into privacy which may here be involved is necessary for the protection of the rights and freedoms of the parties to the litigation.
I am however persuaded, indeed all parties were agreed, that in relation to the entirety of the archive it is important to ensure that the material is not unnecessarily or unwittingly brought into the public domain. Such is necessary not least to protect the integrity of further similar inquiries. For that reason my order at this stage is that inspection, subject to further order, will be by provision of copy documents. I have endeavoured to make express that which would otherwise in any event be implied, viz that no use is to be made of the copy documents thus disclosed other than for the purposes of the litigation and then only in a controlled manner which will safeguard the contents of the documents from inadvertent further disclosure to third parties. Thus, paragraphs 3 and 4 of my Order provide:
"3. The documents provided to the Claimants and Defendant pursuant to this order are to be used by the parties solely for the purposes of inspection and drafting the Statement of Case and/or the Defence and/or the witness statements in this action unti further order. Further, any person who is provided with documents pursuant to this order or is shown any document must not divulge their contents to any person save insofar as it is necessary to do so in connection with the conduct of one of the above purposes in the litigation until further order.
4. No copies of the documents disclosed pursuant to this order are to be provided to third parties other than to the parties' witnesses without the leave of the court. Where a copy of a document is provided to a proposed witness, he must also be provided with a copy of this order and must not show the copy of the document or reveal its contents to any other person or make further copies and must return the copy provided to him to the Claimants' or Defendants' legal representatives (whichever is appropriate) on completion of the task for the purposes of which the document was provided."
Because the priority is to ensure that the Claimants have access to this material whilst finalising their Particulars of Claim, and because it may be that ultimately no use will be sought to be made at trial of much of the material thus disclosed, I have included in my Order a further paragraph:
"5. The documents provided under this order shall not be treated as coming into the public domain by virtue of (a) the provision of them to the Claimants or Defendant (b)inclusion of them in court bundles or (c) providing them to the court to read. No use is to be made of the documents which would result in them coming into the public domain without the consent of the Treasury Solicitor the leave of the court or until further order."
It is important that it be appreciated that this is intended to be an interim measure so as to ensure that there is no delay in the material being made available to the parties— that is why it sets out to preserve confidentiality merely until further order. In fact I anticipate that it is wholly non-controversial to declare that documents do not come into the public domain merely by virtue of being provided by a non-party to the parties to the litigation, or by inclusion of them without more in bundles prepared for use at trial. However, I can see that the position may be said to be different if the stage is reached at which the documents are provided to the court with a view to their being read by the trial Judge as part of his reading in preparation for the trial. I also appreciate that there may be third party interests who might wish to be heard on this issue. I should stress that I have not been addressed upon and I have reached no conclusion concerning the appropriate treatment in relation to documents from the archive which any party wishes to deploy at trial. That problem can be considered as and when it arises, and if necessary, on a document-specific basis. Similarly, I have not heard argument concerning and I have not finally ruled upon the position which will obtain in consequence of the documents being (a) provided in copy to the Claimants or the Defendant or (b) included in court bundles. If anyone wishes to make representations to the effect that either or both of these steps brings the documents into the public domain, they will have the opportunity to do so.
Various of the materials in the archive were provided to the inquiry by regulatory, governmental or quasi-governmental bodies whose right to disclose is regulated by statute. I have already discussed at...
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