England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		21st May 2009

The Honourable Mr Justice Nicol :

1. On 11^th January 2007 the First Claimant was a pupil in Year 11 at the Defendant's school. That day he was set upon and severely beaten by a group of boys and young men in the area of the school's tennis courts. Four of his assailants were other pupils at the school. Three others were adults. All 7 were convicted of wounding with intent contrary to s.18 of the Offences Against the Persons Act 1861. The 2^nd Claimant (who is the 1^st Claimant's younger brother and was also a pupil at the school), the 3^rd Claimant (who is the 1^st Claimant's mother) and the 4^th Claimant (the 1^st Claimant's step-father) all allege that they have suffered post-traumatic stress disorder as a result of the attack on the 1^st Claimant and the injuries which were inflicted on him.
2. The Defendants are the Governors of the school. The Claimants allege that the assault on the 1^st Claimant was caused or contribution to by the negligence of the Defendants in essence by failing to maintain proper disciplinary standards or otherwise take proper care for the security of pupils in the school. They say that the attack had a racial foundation. The 1^st Claimant is white and all the attackers were Asian. They allege that the Defendants had allowed racial tensions in the school to develop and this had led to the attack on him.
3. The action is due to be tried in October 2009. Standard disclosure has already taken place and statements from witnesses of fact have been exchanged. The application before me was by the Claimants for specific disclosure from the Defendants. A second application by the Claimants was due to be heard at the same time. This was for an order for disclosure by the police. However, by agreement, that application was adjourned.

Claimants' application paragraph 1(a): disclosure of pupils' names

4. As part of its standard disclosure, the Defendants gave inspection of a number of items where the names of pupils had been redacted. The first part of the Claimants' application for specific disclosure seeks an order that the Defendants provide unredacted copies of these documents. The documents in question are as follows (the item number in each case is the number in the Defendants' list of documents);

"(i) morning staff minutes [item 34]

(ii) documents relating to the attempts to assess the extent of racial tension within the school from March 2006 [item 45]

(iii) the school's exclusion records 2003/2007 [item 76]

(iv) the "log" of racial incidents as reported to the local education authority [item 88]

(v) the "log" of "racist incidents/bullying/aggression investigations" [item 89]

(vi) the records of children treated at the school's medical facilities [item 96]"

5. It will be necessary to say something about the individual items, but it is appropriate to start with some general comments.

a) An important question in any application for discovery is whether the document in question is relevant to the matters in dispute between the parties. Where the disclosing party has provided redacted copies, that question becomes whether the concealed part is relevant. If it is not relevant, then that is the end of the matter: no order to produce an unredacted copy will be made.

b) In this case, Mr Walker QC, for the Defendants, accepted that there could be no justification for redacting the names of any of the four pupils who had been convicted of assaulting the 1^st Claimant. If and so far as any of their names had been concealed, he undertook to provide copies which showed those names.

c) Mr Glancy QC for the Claimants, submitted that there could not be any argument that the documents already produced by the Defendants were relevant since they had already been provided in redacted form. They would not have been so provided, Mr Glancy argued, if the documents were irrelevant. In my view, though, this is too simplistic for two reasons. First, a party may not object to disclosure of a document if inspection is given only in a redacted form. That does not preclude the disclosing party from arguing that it is under no obligation to allow inspection of that which has been covered up. Second, a document may contain parts which are material to the matters in dispute and others which are irrelevant. Disclosing the document as a whole cannot be taken to amount to a concession or admission that every item in the document is relevant. In this case, for instance, the Defendants have redacted the names of pupils, but they have not sought to fillet out the anonymised references to disciplinary matters (e.g. smoking in the school's toilets) which have no conceivable relevance to the matters in dispute. The Defendants' approach in this regard can be explained by pragmatism rather than an inference that all parts of all documents which have been disclosed is conceded to be relevant.

d) Relevance apart, a party can resist an order for inspection where he has a right or duty to withhold inspection - see CPR r.31.3(1)(b) or where it would be disproportionate to the issues in a case to permit inspection of documents within a category or class of documents disclosed pursuant to the standard disclosure obligation – see CPR r.31.3(2).

e) In this case, the Defendants say that they are under a duty not to allow inspection of the unredacted documents because of the Data Protection Act 1998. They are a data controller for the purpose of s.1 of the Data Protection Act 1998. In unredacted form, the data would be 'personal data' because it is data which relates to a living individual who can be identified from the data – 1998 Act s.1(1). Where the data allows the identification of the data subject's racial or ethnic origin, it is also 'sensitive personal data' for the purposes of s.2 of the 1998 Act. Although disclosure is consistent with the Act if it is necessary for the administration of justice - see Schedule 2 paragraph 5(a) and Schedule 3 paragraph 6(a), the Defendants do not believe that it is so necessary. However, they accept that they will, of course, be obliged to comply with any order which this court makes. In those circumstances, they would be exempt from the non-disclosure provisions of the Act – see s.35(1). For this reason, I think that there is force in Mr Glancy's submission that the Data Protection Act does not take the Defendants' opposition to the Court making an order very far.

f) The Defendants also refer me to Article 8 of the European Convention on Human Rights. This provides:

"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

By s.6(1) of the Human Rights Act 1998, it is unlawful for a public authority to act in a way which is incompatible with a Convention right. A court is a public authority – see s. 6(3)(a). This means that I could not order the Defendants to reveal the identities of pupils if doing so would violate their Article 8 rights. This flows from the Court's status as a 'public authority' for the purpose of the Act. It is immaterial whether the Defendants are themselves a public authority.

g) It is, of course, correct that Article 8 does not confer an absolute right. Article 8(2) makes clear that interferences with a person's private life can be compatible with the Convention. The interference must pursue a legitimate aim, but in the present context, it is sufficient to observe that one such aim can be the 'the protections of the rights and freedoms of others'. However, even in those circumstances, the interference must additionally be 'necessary in a democratic society'. This imports the idea that there must be a pressing social need and the interference must be proportionate to the aim in question. It is important to emphasise that what is in issue is the proportionality of the interference with what would otherwise be the rights of the individual pupils whose names have so far been concealed. Proportionality for the purpose of CPR r.31.3(2) will be more concerned with the burden which the request would throw on to the disclosing party (in this case the Defendants).

h) I bear in mind as well that the Claimants have their own Convention right to a fair trial by virtue of Article 6(1).

i) Science Research Council v Nasse [1980] AC 1028 confirmed that as a matter of English law, confidentiality was no automatic bar to discovery. Relevance was a necessary but not a sufficient test. The ultimate test was whether discovery was necessary for disposing fairly of the proceedings. The House specifically contemplated that a fair disposal of the proceedings could, in some circumstances, be achieved by requiring inspection of only redacted versions of the documents in question. There was no discussion of the possible impact of Article 8. There was brief mention of Article 6 by Lord Wilberforce (at p.1068). He rejected the argument by one of the appellants that this required total disclosure of all information relevant to the case, confidential or not. Lord Wilberforce said,

'But this is a fallacy, because the whole aim and object of those carefully worked out provisions of English law which regulate the right to discovery and inspection of documents is precisely to achieve a fair hearing. That is the standard of our law and it is unnecessary to have resort to the Convention to establish it.'

j) I must also take into account that the people whose identities the Claimants seek disclosure are children (unless, of course, they have become 18 in the intervening years). The UN Convention on the Rights of the Child 1989 Article 3 provides,

'(1) In all actions concerning children whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.'

This Convention has not been incorporated into English law and its provisions are not therefore of direct force. However, on numerous occasions they have been relied upon by the English courts when dealing with matters which concern children (see for instance R (Kenny) v Leeds Magistrate's Court [2004] 1 All ER 1333 ). Article 3 provides that the best interests of the child are a primary consideration, not the primary consideration.

k) The Defendants argue that the documents already disclosed show the Claimants what measures were or were not taken in response to incidents of indiscipline in the school. They say that the Claimants' case would not be advanced by knowing the identity of the individuals concerned. The Claimants respond by saying first that they would wish to show patterns of behaviour by individuals to support their case that the school's law approach to discipline amounted to an encouragement to the kind of racial tension that culminated in the attack on the 1^st Claimant on 11^th January 2007. The Defendants respond to this by saying that the Claimants' requests are too diffuse. If and so as the requests were more closely targeted, patterns of behaviour by individual pupils could be shown (or disproved) by attributing a unique identifier to each pupil involved in relevant activity. A code could be used which would also indicate the person's racial group (so far as that was known). The Claimants say that this scheme would not go far enough. They want, in particular, to investigate the membership of a gang of Asian youths which, they say, was operating in the school and whose activities in particular led to the events of 11^th January. The failure of the Defendants to deal with this kind of racial tension (and also any violence by white youths on Asians) can only be properly assessed if they know as much as the Defendants about the identities of those who were involved in any of these incidents.

6. With this introduction, I can turn to the individual sub-headings in this part of the application.

morning staff minutes [item 34]

7. This covers 18 months of meetings on a daily basis. There are hundreds of pages in item 34, almost every one of which has redactions of pupil names. I agree with the Defendants that this request is far too broad and unfocussed. It is quite plain that very many of the entries where there have been redactions have no conceivable bearing on the issues between the parties. I was asked by Mr Glancy in the course of his reply to consider as an alternative, ordering disclosure where the matter refers to an incident of aggression, racism or bullying. As will be apparent from my decisions in relation to other parts of the application, I think that there is (just) an argument that a more closely tailored request along these lines would have more merit, but it would be for the Claimants (if they wish to pursue the matter) to identify which of the entries would come within these categories and to make out that more refined request. I refuse the application under this heading as it presently stands.

documents relating to the attempts to assess the extent of racial tension within the school from March 2006 [item 45]

8. In March 2006, Ms White sent out a memo to the Heads of Year which said,

'Please could you supply me with the names of any pupils in your year group who you feel have been involved in the present climate of racial tension. This includes Asian lads and white pupils. We need the names so we can attempt to bring them together in a restorative justice session to prevent further tension.'

Item 45 consists of 4 returns to this memo. In each case the names supplied have been redacted.

9. In this case, the names have specifically been supplied by the Heads of Year in connection with questions about racial tension. This request is therefore more focussed. The numbers involved are small. There can be no objection to the request on grounds of disproportionality. I do, however, accept that the disclosure of these children's identities would be an interference with their private lives. I consider that there will be such an interference even though the Claimants and their lawyers will be subject to the restrictions in CPR r. 31.22.
10. If any of these people was a defendant in the criminal proceedings, their identity will be disclosed in accordance with the Defendants' undertaking which I have mentioned above. Otherwise, I am not persuaded that it is necessary for the Claimants to know their identities in order to have a fair trial. Another route to the same conclusion is to apply the SRC v Nasse test. I am not persuaded that disclosure of their identities is necessary for a fair disposal of this litigation. The possibility that revelation of the names might trigger a memory in the minds of potential witnesses on the Claimants' behalf when those witnesses cannot already give the names of members of the Asian youth gang is too tenuous to justify interference under Article 8(2) or to make disclosure necessary for a fair trial.
11. That leaves the possibility that the School was accumulating information about particular individuals, but failed to take sufficiently robust action against those individuals. In order for the Claimants to pursue their investigations in this regard it is sufficient for each person whose name has been redacted in this group of documents to be given an identifier (initials or numbers) which (a) is unique to that person and (b) will allow the Claimant's to know the person's race or ethnicity (if and so far as that is known to the Defendants). There is only a small number of pupils whose names have been blacked out in this item. In isolation, this exercise will not take the Claimants very far. But in combination with my order in relation to item 88 and, possibly more targeted requests in relation to other items, it may be of some use. The Claimants' application did not ask for disclosure in those terms, but I consider that in respect of this item the matter was sufficiently debated at the hearing for me to make such an order. Thus, the Defendants must provide further copies of the documents in this item. Where a name has been redacted, it is not necessary for the Defendants to reveal the name (unless that is required by the undertaking to which I have referred in paragraph 5(b) above) but the Defendants must provide an identifier which is (a) unique to that individual and (b) will allow the Claimants to know that person's race or ethnicity so far as it is known to the Defendants, or will allow the Claimants to know that the race or ethnicity is not known.

the school's exclusion records 2003/2007 [item 76]

12. The exclusions in these records are only rarely permanent exclusions from the school. They range downwards to as short as one day. The disclosed records begin in September 2003. Through to July 2006 the reasons for exclusion are quite brief. The format in which these records were kept changed in September 2006. The records from then onwards provide a little more (though still quite sparse) detail.
13. The Claimants seek to have the names of all of these children identified. As with item 34, in my judgment the Defendants are right to say that this request is too general. There are many hundreds of entries. The reasons given for exclusion cover a wide range – from smoking in the toilets to misbehaviour with fire extinguishers; from rudeness to members of staff to bullying; Very few on their face refer to racist behaviour. If the Claimants wish to make a more focussed application, that will have to be for another day.
14. I would also add, that the exclusion records continue through to July 2007. I could not see any possible basis for ordering any further disclosure at all in connection with those who were excluded after the date of the assault on the 1^st Claimant in January 2007.

the "log" of racial incidents as reported to the local education authority [item 88]

15. There are only three pages in this item. The two entries on the first sheet and the first two entries on the second sheet identify the alleged perpetrator as White British. Since the perpetrators of the attack on the 1^st Claimant were Asian, I initially wondered whether how it would help the Claimants to know the identities of the children in these entries. Mr Glancy, however, submitted that the school's failure to deal with racist behaviour by white pupils may have contributed to the state of racial tension in the school. I see that argument. I am prepared to make the same order in relation to the entries on the first two pages of this item as I have indicated in relation to item 45. The second page of this item records incidents where the victim was a teacher or other member of the school's staff. I do not think that that is a reason not to make the order. A failure to deal adequately with persistent racist behaviour may have had the effect for which the Claimants contend whether it was directed towards staff or pupils.
16. I make no order in relation to the third page of this item. Both these entries relate to incidents in October 2007 which would have been at the beginning of the academic year following the attack on the 1^st Claimant. As such, they are not relevant to any of the issues in the action.

the "log" of "racist incidents/lean/aggression investigations" [item 89]

17. For the most part the incidents recorded in this document took place after 11^th January 2007. For the reasons which I have given previously, further information about those incidents cannot help the Claimants and is not necessary for a fair disposal of these proceedings.
18. The methodology of preparing this document is also different. The alleged perpetrators' names have not been redacted. They have (it would seem in the original document) been anonymised as, for instance, 'Pupil F, Pupil G' etc. What have been redacted are the names of the alleged victims of racism, bullying or aggression. The Claimants want to know these names so that they can investigate whether any of these pupils might be able to give useful evidence for them.
19. I will not make an order in relation to this item. In other contexts it can be an acceptable practice and a legitimate litigation strategy to make use of disclosed documents to search out witnesses. But this case is different. The matters which the alleged victims have discussed with their teachers in many cases caused them upset. It would plainly be an interference with the private lives of the pupils concerned to order disclosure of their identities. I am nowhere near satisfied that this interference is necessary for the Claimants to have a fair trial of their action.

the records of children treated at the school's medical facilities [item 96]

20. I will not make an order in relation to this item either. What I have said about the previous item and the identities of alleged victims would apply to those whose names have been redacted in this item.
21. There is an added sensitivity about medical records. Correspondingly, the need for disclosure would have to be convincingly established. The Claimants come nowhere near satisfying that test. Furthermore, the medical records include entries which have nothing whatsoever to do with assaults or indiscipline in the school. Even if it otherwise had merit, the request in relation to this item is plainly overbroad.

Claimants' application paragraph 1(b): risk assessments

22. The Claimants' seek disclosure of any and all 'Generic risk assessments around the School' undertaken subsequent to March 2005, as referred to in the minutes of the School's Health and Safety Committee meeting of 3^rd March 2005. In his submissions, Mr Glancy spoke of the Claimants' need for any assessment of the risk posed by (i) the open nature of the School's premises; (ii) the possibility of intruders on to the school's premises; (iii) further incidents of racial violence on the school's premises.
23. Mr Walker accepted that the School did conduct risk assessments, but he said there were none in relation to the risks referred to by Mr Glancy. The applicant for specific disclosure must persuade the Court that there are at least prima facie grounds to believe that the requested documents exist. The simple assertion that there must be risk assessments is not sufficient in the face of Mr Walker's comment, which was no doubt made on instructions. Indeed, for what it is worth, the absence of any relevant risk assessments may provide some assistance for the Claimants.
24. I make no order in relation to this part of the application.

Claimants' application paragraph 1(c): investigation into the incident on 11^th January 2007

25. The Claimants did not pursue this part of their application. I need say no more about it.

Claimant's application paragraph 1(d): Reports Manager database, operating manuals and policies

26. Mr Colledge is the current Head Teacher at the School. In his witness statement of 3^rd March 2009 he said:

"21. There would be meetings for the Heads of Years which took place on Tuesday, Wednesday, Thursday and Friday mornings. The Heads of Year would advise the meeting of any problems that they had been made aware of. Heads of Year would have regular meetings with their tutors with individual tutors having recorded issues of pupil misbehaviour on Reports Manager, a computerised system. The Heads of Year would review that on a daily basis and so would be able to pick up on any particular trends or problem pupils which they would then be able to discuss with the tutors in their groups…..

24. As I said behavioural matters would first of all be recorded on Reports Manager by individual tutors with Reports Manager being looked at on a daily basis by Heads of Year as well as by Ron Piper, one of the Assistant Heads. He too would pick up on any behavioural trends or regular repeat offenders."

27. Mr Piper made a witness statement on 25^th February 2009. He said at paragraph 17:

"Instances of poor behaviour would be recorded on Reports Manager. It would be the individual's responsibility to enter information into Reports Manager which I would then review. Subsequently, I compiled summative reports of fixed period and permanent exclusion data which was reported to the Pupil Committee. I would obviously look out for frequently occurring names as well as patterns of behaviour that might have been developing and, where necessary, I would speak to the individual Heads of Year."

28. The Claimants submit that these references to the Reports Manager database entitles them to inspect a copy of the data base in hard copy and electronic forms, together with the software manuals for the system as employed within the School and all internal policies, instructions and/or directives as to its use.
29. They rely on CPR r.31.14(1) which says

"A party may inspect a document mentioned in - …(b) a witness statement. "

30. They observe that CPR r.31.4 defines a 'document' as 'anything in which information of any description is recorded' and so the term is capable of including a database. They also rely on what Rix LJ said in Rubin v Expandable Ltd [2008] 1 WLR 1099 at [24],

"Subject to Mr Lightman's second point, that the mention of the document within CPR r 31.14 amounts to an automatic and absolute waiver privilege in it, which if correct would give to that rule a most important effect, I do not see why there should be need for a strict approach to a request to inspection of a specific document mentioned in one of the qualifying documents. The general ethos of the CPR is for a more cards on the table approach to litigation. If a party thinks it worthwhile to mention the document in his pleadings, witness statements or affidavits, I do not see why, subject as I say to the question of privilege, the court should put difficulties in the way of inspection. I look upon the mention of a document in pleadings etc as a form of disclosure. The document in question has not been disclosed by list, or at any rate not yet, but it has been disclosed by mention in what, for the purposes of litigation, is another important and formal category of documents. If so, then the party deploying the document by its mention should in principle be prepared to be required to permit its inspection, and the other party should be entitled to its inspection. What in such circumstances is the virtue of coyness?"

31. The Defendants do not dispute that the database is a 'document' for these purposes or that it has been mentioned in the witness statements of Mr Colledge and Mr Piper. However, they submit that the effect of so mentioning it is the equivalent of including reference to it in their list of documents. While a party must normally allow inspection of a document which is included in a disclosure list, it need not do so if it has a right or duty to withhold inspection or it would be disproportionate (see CPR r.31.3(1)(b) and 31.3(2)). The Defendants refer to a later section of Rix LJ's judgment at [40] where he said,

"40 Fifthly, one reason why CPR r 31.14 itself does not expressly cross-refer to rule 31.19 is that rule 31.14 is viewed as merely an adjunct to CPR rule 31.3, so that a further cross reference is unnecessary. In this connection it will be observed that rule 31.3 is of general application whenever "a document has been disclosed". Although disclosure generally takes place by list under rule 31.10, it also takes place by virtue of the mention of documents within rule 31.14. Thus rule 31.14 disclosure with its ancillary right to inspect, is merely a species of disclosure and comes within the general provisions of rule 31.3."

32. The Defendants submit that the Reports Manager database is huge. It contains a vast amount of detail which has no possible relevance to the issues in this case. Allowing inspection of the whole database is therefore disproportionate. It would also disclose the names of pupils in a way that would interfere with their rights under Article 8 of the ECHR and for which there is no necessity so as to come within Article 8(2). Consequently, they are entitled and obliged to resist inspection.
33. Mr Walker says, that while there may be manuals for using the computer system, there can be no reason to give inspection of them if the database itself is not subject to inspection. He says, again on instructions, that there are no written school policies or instructions as to what was to be recorded.
34. The Claimants accept that the Court of Appeal in Rubin found that inspection of a document mentioned in a pleading or witness statement could be resisted on grounds of privilege but, Mr Glancy submits, it is impermissible to extrapolate from that particular ground for objecting to inspection to the more general grounds in r.31.3.
35. I prefer the arguments of Mr Walker on this point. It seems to me that Rix LJ was equating mention of a document in a witness statement with inclusion of a document in a disclosure list. Both would normally trigger a right of exception. However, that normal position is subject to the qualifications in r.31.3. Privilege was the relevant objection in Rubin, but I see nothing in that judgment to preclude the possible reliance on other objections to inspection in r.31.3.
36. That being so, I also accept both of Mr Walker's objections to inspection. Thus, I accept that disclosure of the pupil names in that database would be an infringement of their rights under Article 8 and would not be justified under Article 8(2). I bear in mind as well that the Claimants have already had disclosure of disciplinary action in the form of exclusions in redacted form. They have also had disclosure (again in redacted form) of the morning staff minutes. I have made my rulings above as to why the Claimants are not entitled to deredacted versions of those documents. To require the Defendants to provide a redacted version of their database would also be a very substantial task which I regard as disproportionate to any possible benefit for the Claimants or the issues in the case. In addition, the volume of material on the database which has no possible bearing on the issues in this case would, in my judgment, make it disproportionate to require the Defendants to give inspection of it.
37. Accordingly, I reject the Claimants' application under this head.