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a new era of disclosure

14 October 2013

When the Court of Appeal gave their judgment in Durham County Council v Dunn in December 2012, it provided much needed clarification upon the way in which documents must be disclosed in litigation. Lawyers anticipated a cheaper, quicker, less complex process. But ten months after Dunn turned disclosure on its head, has the experience of local authorities reflected these initial expectations?

The case of Durham CC v Dunn

Dunn was resident at Newton Aycliffe, a secure facility run by Durham CC, between 1981 and 1984. In December 2007, his solicitors wrote to the Council intimating a damages claim for alleged assaults by staff during his residence there.

Limited documentation was disclosed pre-action, including the claimants redacted social services file. Once issued, the claimant applied for an order for un-redacted disclosure. His solicitors were particularly interested in the names of other former residents, who they argued were potential witnesses. The Court ordered disclosure with the names redacted out. Both parties and the Court approached the issue on the basis of the Data protection Act 1998 (DPA).

The matter was further appealed before reaching the Court of Appeal in November 2012. In giving its Judgment, the Court in one stroke clarified the regime that applies to disclosure in litigation: it made clear that the DPA is a distraction, and the Civil Procedure Rules apply.

The key issue is relevance. If a document is relevant, it should be disclosed. Where information is particularly sensitive to the claimant or a 3rd party, a balancing exercise is required - between a right to a fair trial under Article 6 of the European Court of Human Rights, and a right to privacy under Article 8.

The test is a high one: only when "strictly necessary" can disclosure be denied. Going forward, a refusal to disclose would be the exception rather than the rule.

Impact of the judgment

Whilst this judgment applies to all litigation, it is claims against childrens services where the impact is most significant. Local authorities (LAs) are the trusted keepers of highly sensitive information relating to children, their families and acquaintances. Many senior professionals within LAs are concerned that the impact of Dunn will lead to more risks than benefits over time.

But is this nervousness justified? There is much to be positive about: we now know precisely what regime governs disclosure. LAs should no longer have to commit scarce resources to redacting volumes of documents. Large quantities of irrelevant information should not now be disclosed, and there should be less scope for disputes over disclosure - all of which translate into reduced costs. But there will undoubtedly be early challenges, and some key themes are already apparent:

• First, the question of relevance. Searches for documents must be properly focussed. This requires the claimant to particularise their allegations from the outset, which is often not the case. Without this clarity, the LA is still at risk of disclosing too much or too little. Some LAs are resorting to the DPA in these circumstances, resulting in increased costs if the exercise has to be repeated, and possible court criticism.

• Even where the claim is clear the documents still require careful review, to assess relevance and - crucially - to identify information where the balancing exercise is required. This may be less time consuming than DPA redaction, but does not eliminate disclosure costs completely.

• Importantly, the assessment of relevance is a skilled task, where judgement must be exercised. Weighing the competing Articles is a further challenge. Some LAs are comfortable with this, but others do not have the appropriate in house experience. How do you decide upon the relevance to the claimants case of his mothers psychiatric problems, and suicide attempts? What about his sisters history of abuse by a neighbour - possibly relevant, but very sensitive to her? If this judgement is not exercised correctly and documentation is wrongly disclosed, then the LA is at risk from a damages claim, criticism from the court and negative publicity.

• Ironically, many LAs remain concerned about the risks of getting it right: LAs should have protection from any damages claim arising from disclosure, providing it is undertaken in line with Dunn. However, this counts for little in the court of public opinion, and LAs are acutely aware of the potential for negative publicity in this area. Consider the media reaction to the example above, were the former neighbour and alleged abuser of the claimants sister to be assaulted or worse, having been identified in documents correctly disclosed by the LA. This may seem extreme, but some childrens services professionals think it is just a matter of time.

Minimising the risks

• Knowledge is key. The more training provided to those responsible for preparing documents for disclosure, the more likely it is that they will get it right. Experience is invaluable. Rely upon internal or external legal providers for guidance and advice.

• Where allegations are not sufficiently clear to be able to identify relevant documentation, LAs should push for clarification. Lay down costs markers in correspondence. If - when the case is properly detailed - the disclosure exercise has to be repeated, the LA should avoid court criticism, and may be able to argue for its costs.

• There will be examples where relevant documents are simply too sensitive to disclose - for instance, documents that identify informers. Submissions to court may result in an order that such information is redacted from the records.

• In less obvious circumstances, where the balance falls in favour of disclosure, the LA can still seek to limit those who have sight of the records, by requesting undertakings (or a Court Order) restricting disclosure to the court, experts and lawyers.

The approach to disclosure set out in Dunn undoubtedly raises some financial and reputation risks for LAs. However, it also provides an opportunity to focus resources, limit disclosure and save costs. LAs should face the challenges posed by Dunn head on, in order to embrace these considerable benefits resulting from the judgment.

This article was first published in Public RM

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