Jersey Unreported Judgments

[2003]JRC065

royal court

(Samedi Division)

7^th April 2003

Application for Disclosure under Article 2 of the Law Reform (Disclosure and Conduct before Action) (Jersey) Law 1999

Advocate P.M. Livingstone for the Representor.

Advocate D.J. Benest for the Respondent.

judgment

the deputy bailiff:

1.        This is an application by the Representor under Article 2 of the Law Reform (Disclosure and Conduct Before Action) (Jersey) Law 1999.  That Article provides as follows:

"(1) On the application of a person who appears to the Court to be likely to be a party to subsequent proceedings in that Court in which a claim in respect of personal injuries to a person, or in respect of a person's death, is likely to be made, the Court shall, in such circumstances as may be prescribed, have power to order a person who appears to the Court to be likely to be a party to the proceedings and to be likely to have or to have had in his possession, custody or power any documents which are relevant to an issue arising or likely to arise out of that claim -

(a)       to disclose whether those document are in his possession, custody or power; and

(b)      to produce such of those documents as are in his possession, custody or power to the applicant or, on such conditions as may be stated in the order -

(i)            to the applicant's legal advisers, or

(ii)           to the applicant's legal advisers and any medical or other professional adviser of the applicant, or

(iii)          if the applicant has no legal adviser, to any medical or other professional adviser of the applicant.

(2)     The Court shall not make an order under paragraph (1) if it considers that compliance with the order, if made, would be likely to be injurious to the public interest."

2.        The background is that the Representor was a residential care officer employed by the Health and Social Services Committee at Heathfield.  On the 2^nd September, 2000, there was an incident concerning a 12 year old child who was a resident at Heathfield.  The child assaulted the Representor causing injuries to her face, right arm and right leg.  She apparently also suffered psychological injury as a result of which she was off work for a considerable period. 

3.        The child normally resided at a special educational centre in the United Kingdom but used to come home for holidays and breaks at which time he would stay at Heathfield. 

4.        The Representor now wishes to bring an action against the Committee.  She proposes to allege that it was in breach of its duty of care towards her as an employee by permitting a child with violent tendencies to stay at Heathfield without ensuring adequate facilities to cope with such a child.

5.        An important issue therefore is whether the Committee knew or ought to have known of the child's violent tendencies.  Accordingly, the Representor now seeks the child's medical records and other documents relating to the recorded history of the child's residence whilst in the care of the Committee.  The Committee is concerned that this would involve disclosure of confidential documents and, therefore, whilst not opposing the application, has quite properly drawn to the Court's attention the need to have regard to the public interest.

6.        This appears not to be a matter which has arisen for decision in Jersey before, the Law having only been brought into force recently.  We were referred to the English case of Campbell -v- Tameside Metropolitan Borough Council [1982] 3 WLR 74.  The case was not wholly dissimilar.  A school teacher was assaulted by a pupil.  She wanted to sue her employer, the local education authority, and she sought all documents about the pupil such as reports of teachers, physcological and psychiatric reports and so forth, in order to see whether she had grounds upon which to bring a claim.  Ackner LJ set out very helpfully the applicable principles as he saw them at page 81.

"(1)                    The exclusion of relevant evidence always calls for clear justification.  All relevant documents, whether or not confidential, are subject to disclosure unless upon some recognised ground, including the public interest, their non-disclosure is permissible.

(2)                         Since it has been accepted in this court that the documents for which the respondent seeks discovery are relevant to the contemplated litigation, there is a heavy burden upon the appellants to justify withholding them from disclosure: see in particular Conway -v- Rimmer [1968] AC 910 and Reg. -v- Lewes Justices, Ex parte Secretary of State for the Home Department [1973] A.C. 388, 400H per Lord Reid.

(3)                         The fact that information has been communicated by one person to another in confidence is not, of itself, a sufficient ground for protection from disclosure in a court of law, either the nature of the information or the identity of the informant if either of these matters would assist the court to ascertain facts which are relevant to an issue upon which it is adjudicating: Alfred Crompton Amusement Machines Ltd -v- Customs and Excise Commissioners (No. 2) [1974] A.C. 405, 433-434.  The private promise of confidentiality must yield to the general public interest, that in the administration of justice truth will out, unless by reason of the character of the information or the relationship of the recipient of the information to the informant a more important public interest is served by protecting the information or identity of the informant from disclosure in a court of law:.....

(4)                         ................

(5)   The proper approach where there is a question of public interest immunity is a weighing, on balance, of the two public interests, that of the nation or the public service in non-disclosure and that of justice in the production of the documents.  Both in the "class" objection and the "contents" objection the courts retain the residual power to inspect and to order disclosure:  Burmah Oil Co Ltd -v- Governor and Company Company of the Bank of England [1980] AC 1090, 1134 per Lord Keith of Kinkel ; pp 1143-1144, per Lord Scarman.

(6)   A judge conducting the balancing exercise needs to know whether the documents in question are of much or little weight in the litigation, whether their absence will result in a complete or partial denial of justice to one or other of the parties or perhaps to both, and what is the importance of the particular litigation to the parties and the public.  All these are matters which should be considered if the court is to decide where the public interest lies; per Lord Pearce in Conway -v- Rimmer and quoted by Lord Edmund-Davies in the Burmah Oil case [1980] AC 1090, 1129.  Lord Edmund-Davies commented that a judge may well feel that he cannot profitably embark on such a balancing exercise without himself seeing the disputed documents and cited in support of that view the observations of Lord Reid and Lord Upjohn in Conway -v- Rimmer.

7.        The documents in this case are clearly confidential documents.  They were prepared for the purposes of the Committee in managing the child's welfare, and the child is entitled to respect for his privacy.  But that has to be set against the interests of justice in ensuring that all relevant evidence is available to the court.  We have inspected the material in this case.  It is clearly relevant to the issue of the Committee's state of knowledge as to the child's violent tendencies.  That, of course, is not to say that any such knowledge will of itself be sufficient to establish liability.  The Representor will have to establish many additional matters, but it is clearly a significant aspect in relation to any potential claim, and the relevance of the documents points towards an order for discovery.

8.        As we say, we balance against that the public interest in maintaining the confidentiality of such reports.  Having carried out that exercise, we are in no doubt that, on the facts of this case, the balance comes down in favour of disclosure.  There are, however, certain limitations.  We were given three files of materials.  File 3 contained the results of various criminal investigations arising out of this boy's activities.  They are clearly relevant to establishing the state of the Committee's knowledge and they do not carry high confidentiality.  We therefore think it right to order their disclosure.  File 2 contains many reports, memos, notes of case conferences and so forth.  They are all relevant.  They are confidential, but for the reasons we have given, we think they must be disclosed because they are relevant to the issue of knowledge.  There were certain documents included in File 2 which related to incidents which had taken place after the 2^nd September, 2000, and they need not be disclosed. 

9.        File 1 contains the daily record sheets in relation to this child.  Those sheets contain a number of personal records of his activities and so forth.  In our judgment all the information which it is necessary for the Representor to have at this stage can be obtained from File 2.  The reports in that file are of course drawn from some of the information contained in the daily record sheets.  We think it would be an unnecessary and unreasonable invasion of this boy's privacy to order disclosure of the daily record sheets at this stage, and we do not consider that such disclosure is essential in order to give the Representor the information she needs so as to decide whether to bring a claim.  Should it later become necessary for the Representor to have access to these daily record sheets once the litigation is under way she can, of course, always make an application for disclosure at that stage.  We are merely concerned at this stage with ensuring that she is given enough information to ascertain the Committee's state of knowledge so that she can decide whether to bring a claim. 

10.      File 2 does also contain some psychiatric and psychological reports.  It does not contain reports from the child's general practitioner, nor does it contain notes made by the psychiatrist for the purposes of her report.  We do not see any need, at this stage, to order disclosure of the GP's records or the psychiatric notes.  Again, it seems to us that the Representor will obtain all the information she needs for present purposes from the documents in File 2.

11.      Accordingly, we order disclosure of the documents in File 3 and File 2 subject to the exception we have outlined.  We do not order disclosure of File 1.  We remind the parties of the need to ensure that the confidentiality of this child is maintained in the sense that his name must not be disclosed.

Authorities

Campbell -v- Tamesid Metropolitan Borough Council [1982] 3 WLR 74 CA.

Hall -v- Wandsworth Health Authority [15 March, 1985] 129 SJ 188.

Law Reform (Disclosure and Conduct before Action) (Jersey) Law 1999.

Matthews & Malek: Disclosure (2^nd Ed'n): paras 2.25-33.