England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COUNTY COURT
(RECORDER HUNGERFORD)

		Royal Courts of Justice Strand London WC2 Tuesday, 19th June 2001

1. LORD JUSTICE KEENE: This is an application for permission to appeal against the decision of Mr Recorder Hungerford sitting at Oxford County Court on 1st March 2001. By his decision the recorder dismissed an appeal against an order of District Judge Payne dated 20th December 2000, whereby the district judge had required all parties to file witness statements by 17th January 2001. The recorder also refused an application made to him by the applicant for disclosure of certain documents.
2. In respect of the first of those two matters the applicant does not seek to appeal. Her fire is concentrated on the refusal of disclosure of documents. The applicant has brought an action under the Race Relations Act 1976 against the trustees and warden of a hostel where she was resident from late May 1994 to 8th July 1994. She alleges that she was discriminated against by the staff sometimes directly but particularly in the way in which they failed to act to discipline some other residents. By the disclosure application she sought disclosure of all the case histories and relevant materials when she was a resident at the hostel plus a reasonable amount before and after her period of residence. These case histories are those of the other residents as set out in the personal files of the residents as kept by the hostel.
3. The hostel has disclosed its log book for the period of six weeks when Miss Simba-Tola was resident and for three months either side of that period. The log book records, as one can see from extracts which are in the bundle, the events of the day in question, the conduct of particular individuals, if noteworthy, and so on. A notebook and a message book from one carer to another were also disclosed.
4. The personal files of inmates are kept in accordance with the document entitled National Standards for the Supervision of Offenders in the Community issued by the Home Office. These require information to be kept as to certain basic personal details of each resident and:

"* ... sentencing court, and charge or conviction resulting in the residence requirement;

* any bail, order or licence conditions;

* any future court dates and reports required;

* any supervising probation officer;

* any religious or cultural considerations;

* any prescribed medication, medical conditions, diet; and

* the paying authority.

Staff must subsequently record any changes to these items plus any significant events, including violent or racist incidents and failure to comply with the rules, in the resident's records."

5. The document then goes on to refer to the need to keep a log book.
6. Some of that information as detailed by the National Standards would seem to have little potential for any relevance to the issues in this case, and clearly much of the information is highly personal or likely to be so. But what the applicant seeks disclosure for derives from the reference to "individual events, including violent or racist incidents, and failure to comply with the rules".
7. The learned Recorder posed the legal test in the following terms:

"The question for me to decide is whether or not the further documents she seeks, first of all, are relevant to an issue in this case, and, secondly, in any event, ought to be disclosed because it would be necessary for disposing fairly of the proceedings."

8. He said that he bore in mind the guidelines set out in the decision in Science Research Council v Nasse [1980] AC 1028. He looked at the applicant's own file and concluded that the incidents recorded there were either already recorded in the log book or were of a confidential nature which he considered it would be contrary to the public interest to disclose. So he refused disclosure. He did not look, as I understand the position, at any of the personal files of any of the other residents at the time when Miss Simba-Tola was resident or at any stage by the side of her period of residence.
9. Today, Miss Simba-Tola, who has appeared on her own behalf and argued her case succinctly and persuasively, contends that the learned recorder misdirected himself in applying the principles in the case of Nasse. She says that he should have obtained the case histories of the other residents, if necessary by adjourning the hearing to obtain them, in order to determine whether they should be disclosed. Without that he was unable to arrive at a proper judgment and a proper exercise of his discretion.
10. As I said, the recorder did not examine the documents in issue. It seems to me it is arguable that in accordance with the guidelines set out in Nasse he should have done so, and indeed he could not properly have arrived at judgment on this issue without having done so. Without doing that, he would not be able to see whether there was additional information in them not disclosed in the log book already available nor could he really arrive at any conclusion about whether the public interest required the personal files to be kept from disclosure even though they might have some relevance to the case being advanced by this applicant.
11. In those circumstances I take the view that there is an arguable point here. I therefore grant permission to appeal.
(Application for permission to appeal allowed; expedition of listing and expedition of transcript; copy of transcript to applicant at public expense)