Disclosure in child abuse compensation claims is still not straightforward

Susie Roome, Browne Jacobson

Since the Court of Appeal decision in D v Durham County Council [2013] 1 WLR 230, it has been clear that, in actual or contemplated legal proceedings concerning alleged child sexual abuse, disclosure of records must take place with reference to the Civil Procedure Rules, rather than being treated as a statutory application under the Data Protection Act 1998.

The Court of Appeal took the opportunity to clarify what approach should be taken to disclosure in personal injury cases. The starting point is that, if documents are relevant to a claimant’s case (and if the case is at an early stage, relevant to the claimant’s likely train of enquiry), then there is a presumption in favour of disclosure, unless there is a good reason to the contrary.

It has always been recognised that the court has inherent powers to take precautions against the possibility that disclosure and inspection might be abused by either party to the litigation. For that reason, it has powers to restrict the inspection and scrutiny of confidential personal data.

Our own experience is that, increasingly, claimants’ solicitors are happy to give undertakings agreeing that social services records can only be viewed by them, their counsel and their professional experts, but this approach is not universal.

It is important to bear in mind that this does not simply open the door to parties exchanging unredacted material between solicitors, without first considering whether it is relevant or appropriate to do so in the particular circumstances of each case.

In Marsh v The Ministry of Defence [2015] EWHC 3736, disclosure made within a prison officer’s personal injury claim against The Ministry of Justice was the subject of an application by the Chief Constable of Police to withhold certain documents. In this particular case, the court had examined the documents and concluded that those which the Chief Constable wished to hold were irrelevant. Even if relevant, their disclosure would have been withheld in the public interest. The balancing exercise was carried out by the court and, on this occasion, the balance fell in the Chief Constable’s favour.

A similar approach was adopted on Appeal in the Court of Protection case of C v C [2014] EWHC 131 (COP). Here a birth mother wished to re-establish contact with her child C, who had been adopted as a very young child. The local authority filed a clinical psychologist’s report and three social workers’ statements as directed by the court. A judge ruled that the mother could see a redacted copy of the psychologist’s report, but not the social workers’ statements. He accepted that there was a presumption in favour of disclosure, unless a good reason to the contrary was shown. He then applied the test of strict necessity set out in D v Durham County Council, bearing in mind the competing rights of the birth mother and the adopted child under the European Convention of Human Rights.

He concluded that it was not in the child’s interest to reveal her detailed circumstances or whereabouts to her birth mother. The relationship between them had been severed in very early childhood and there was nothing in the redactions which would assist the mother further in her application.

In relation to the social workers’ statements, he concluded that it would breach the child’s privacy for her birth mother to have access to the very detailed information within them. There was no necessity for mother to see them. He did, however, allow the statements to be disclosed to the mother’s legal representatives on the strict basis that the information would not be divulged to the mother. This decision was appealed successfully. Whilst the redactions in the psychologist’s report were not overturned, it was concluded on appeal, that it had not been considered whether the child’s interests made it necessary for her birth mother not to see the statements. This was the key question, and it had not been addressed.

Parts of the original judge’s order relating to disclosure of social work statements were set aside and remitted back to the judge for reconsideration.

Most recently, a balancing exercise was carried out in the case of DB v General Medical Council [2016]. The GMC investigation into a doctor’s fitness to practice led to them instructing an independent expert. A summary of that report was sent to a patient (who had earlier complained that there was a delay which led to a delay in his cancer treatment). The patient then applied for a copy of the report, which was treated by the GMC as a request by him as a data subject. The request was being made with a view to litigation.

The doctor objected, concluding that compliance with the patient’s request was unlawful and breached his rights of privacy as a data subject. He pointed out that disclosure would damage his professional reputation.

It was held that, in the absence of the doctor’s consent, the GMC should have started with a presumption against disclosure, since the report’s real focus was on the doctor’s professional competence. In carrying out the balancing exercise, the GMC took no adequate account of the doctor’s refusal of consent or the fact that the purpose of the request was to use it in intended litigation against the doctor. Accordingly, it was concluded that the GMC’s decision was unlawful.

All of the above shows that disclosure under D v Durham County Council is still by no means straightforward.

Where a claim is based on allegations against former employees that might expose those individuals to litigation themselves, due care and consideration should be given as to whether their consent is given, particularly when one is dealing with files which relate purely the alleged abuser, such as personnel, disciplinary or fostering files.