Jersey Unreported Judgments

Hearing (Civil) - reasons.

[2021]JRC092

Royal Court

(Samedi)

29 March 2021

Before     :

Advocate Matthew John Thomson, Master of the Royal Court.

 

Advocate C. Hall for the Plaintiff.

Advocate D. Cadin for the Defendant

CONTENTS

		Paras
1.	Introduction	1-3
2.	The legal framework	4-10
3.	Discussion and Decision	11-23

 

judgment

the master:

Introduction

1.        This judgment sets out my written reasons exploring the approach to be taken in relation to the provision of documentation by the defendant when facing allegations concerning whether or not Children's Services have failed to take appropriate steps to protect the plaintiff who is alleged to have been at a real risk of harm from the plaintiff's birth parents when a child. 

2.        I have been asked to issue this judgment to set out the approach that should be taken in cases involving allegations of breach of duty against Children's Services generally.  However, this judgment may also apply to other cases involving an allegation of a failure by a government department or agency to protect a vulnerable individual where allegations of breach of duty are made and where the relevant department is holding sensitive information about a plaintiff and others involved including members of that plaintiff's family. 

3.        In this case what appeared to be at the heart of the issue I had to decide was who might see such sensitive information and on what terms.  In cases such as the present claim, files may record information about or from a plaintiff, sibling(s), parents, foster parents, adoptive parents, other non-professional carers involved with a plaintiff's care or individuals who were in contact with a plaintiff at the relevant time.  I was informed that this was the situation in the present case.  In particular, what is sensitive are any documents that record observations made by such persons either about a plaintiff or about any other person connected to the plaintiff.  Such individuals may also be wholly unaware that documents exist recording statements they have made, or which have been made about them.  Furthermore, statements may have been made many years ago and may not necessarily reflect the views now held or if aired may cause problems or difficulties for one or more of the people involved.

The legal framework

4.        As far as counsel were aware, how provision of documentation should be approached in cases of this kind has not previously been considered by the courts of Jersey.  However, the challenges posed by these sorts of cases have been considered by the courts of England, which in this area are a very helpful and useful guide to the approach that might be adopted. In particular, I was referred to a judgment of the English Court of Appeal dated 29^th July 2020 Secretary of State for the Home Department & Anor v R & Anor [2020] EWCA 1001.  This decision concerned whether documents on an asylum file in the United Kingdom should be disclosed in private children law proceedings between the child's parents.  However, the observations in terms of discovery and whether documents should be disclosed are of more general application and are relevant to the approach that should be taken to disclosure in sensitive cases in this jurisdiction including the present proceedings.   

5.        The starting point is paragraph 18 of the Court of Appeal judgment which states as follows:-

"18.  In Science Research Council v Nasse [1980] AC 1028 at page 1065, Lord Wilberforce observed:

"There is no principle in English law by which documents are protected from discovery by reason of confidentiality alone."

The approach to be followed by a court when deciding whether confidential documents should be disclosed into proceedings has been broadly settled for many years. It was summarised by Lord Cross of Chelsea in Alfred Crompton Amusement Machines v Customs and Excise Commissioners (No.2) [1974] AC 405 at p413:

"What the court has to do is to weigh on the one hand the considerations which suggest that it is in the public interest that the documents in question should be disclosed and on the other hand those which suggest that it is in the public interest that they should not be disclosed and to balance one against the other."

6.        Science Research Council v Nasse has been applied in this jurisdiction (see e.g. W v JFSC [2015] JRC 017 upheld on an unsuccessful application for leave to appeal reported at W v JFSC [2015] JCA 060.

7.        The Court of Appeal in Secretary of State v R then continued at paragraph 19 and 20 as follows:-

"19.  Since the incorporation of the European Convention on Human Rights ("EHCR") into our law via the Human Rights Act 1998, this weighing up of considerations has been expressed in terms of a balancing of competing ECHR rights. The approach to be adopted was summarised by Maurice Kay LJ in this court (sitting with Munby and Tomlinson LJJ) in Durham County Council v Dunn [2012] EWCA Civ 1654 :

" First, obligations in relation to disclosure and inspection arise only when the relevance test is satisfied. Relevance can include "train of inquiry" points which are not merely fishing expeditions. This is a matter of fact, degree and proportionality. Secondly, if the relevance test is satisfied, it is for the party or person in possession of the document or who would be adversely affected by its disclosure or inspection to assert exemption from disclosure or inspection. Thirdly , any ensuing dispute falls to be determined ultimately by a balancing exercise, having regard to the fair trial rights of the party seeking disclosure or inspection and the privacy or confidentiality rights of the other party and any person whose rights may require protection. It will generally involve a consideration of competing ECHR rights. Fourthly, the denial of disclosure or inspection is limited to circumstances where such denial is strictly necessary. Fifthly, in some cases the balance may need to be struck by a limited or restricted order which respects a protected interest by such things as redaction, confidentiality rings, anonymity in the proceedings or other such order. Again, the limitation or restriction must satisfy the test of strict necessity." (underlining added)

20.  In conducting the balancing exercise, appropriate weight must be attached to the parties' rights to a fair trial under Article 6 of ECHR . In Re B (Disclosure to Other Parties) [2001] 2 FLR 1017 at paragraph 89, Munby J (as he then was) set out the following principle:

"Although, as I have acknowledged, the class of cases in which it may be appropriate to restrict a litigant's access to documents is somewhat wider than has hitherto been recognised, it remains the fact, in my judgment, that such cases will remain very much the exception and not the rule. It remains the fact that all such cases require the most anxious, rigorous and vigilant scrutiny. It is for those who seek to restrain the disclosure of papers to a litigant to make good their claim and to demonstrate with precision exactly which documents or classes of documents require to be withheld. The burden on them is a heavy one. Only if the case for non-disclosure is convincingly and compellingly demonstrated will an order be made. No such order should be made unless the situation imperatively demands it. No such order should extend any further than is necessary. The test, at the end of the day, is one of strict necessity. In most cases the needs of a fair trial will demand that there be no restrictions on disclosure. Even if a case for restrictions is made out, the restrictions must go no further than is strictly necessary." (underlining added)

This approach, and in particular the passage cited above, was endorsed by this court in Re B, R and C (Children) [2002] EWCA Civ 1825 "

8.        The Court of Appeal also stated the following at paragraphs 53 and 54:-

"53.  I do not consider it necessary to embark on a lengthy further analysis of the principles or a restatement of the approach to be applied, which was succinctly set out by Maurice Kay LJ in the passage from his judgment in Dunn v Durham County Council cited above. That approach is to be followed whenever a party or person asserts exemption from disclosure. Faced with such an assertion, the judge must conduct a balancing exercise, having regard to the competing ECHR rights, in particular the fair trial rights of the party seeking disclosure or inspection and the privacy or confidentiality rights of the other party and any person whose rights may require protection, bearing in mind that the denial of disclosure or inspection is limited to circumstances where such denial is strictly necessary.

54.  This approach applies to a range of documents in respect of which disclosure is often sought in family proceedings - police records, local authority files, information held by central government departments, medical records, therapeutic and counselling notes. As my Lord Phillips LJ observed during the hearing, all contested applications for disclosure involve private information. If the information was publicly available, no application would be needed. The weight to be attached to the confidentiality of the information varies from case to case, but the approach to the balancing exercise is the same. As this Court emphasised in Dunn v Durham County Council , the denial of disclosure or inspection is limited to circumstances where such denial is strictly necessary because, as Munby J observed in Re B , in most cases the needs of a fair trial will demand that there be no restrictions on disclosure. It follows that the judge was right to say, at paragraph 55 of the second judgment, that the starting point in any analysis must be that a party to family proceedings is entitled to consider all evidence that is relevant, pursuant to his cardinal rights under the ECHR and the common law principles of fairness and natural justice."

9.        What is clear from these extracts, in particular the passages underlined, is that the onus is on the person in possession of documents relevant to an issue or which a person otherwise has a right to see to assert exemption from disclosure or inspection.  That then leads to the court having to perform a balancing exercise between the right to a fair trial of the party seeking disclosure or inspection and the privacy or confidentiality rights of any other person whose rights may require protection.

10.      The judgment also makes it clear that it is for those who seek to restrain the disclosure of papers to make good their claim and to demonstrate with precision exactly which documents or class of documents require to be withheld with the burden being a heavy one.  The withholding of any part of a document that is relevant or which a party has a right to see must satisfy a test of strict necessity. In this case, having provided redacted documents to the plaintiff, the defendant then invited the plaintiff to set out which of the redactions they were challenging. As I made plain during the hearing, I was not impressed with this approach as it was clearly contrary to authority and was an attempt to persuade the plaintiff's advisers to agree to redactions when they did not know (as distinct from any educated guesswork), what had been redacted or why.

Discussion and Decision

11.      The issue in this case is how to arrive at a position where a court can perform the balancing exercise that is required to determine whether any redactions of documents are necessary.  The approach I took in this case was that unredacted documents should be provided to the plaintiff's legal team and relevant experts but subject to an express order that such documents could not be provided to the plaintiff pending further order.  The first rationale for providing documents on this basis was to enable the plaintiff's advocate with relevant experts to consider whether or not there was a prima facie case.  The other reason for providing unredacted documents to a selected group of people was so that they could consider whether or not they wished to challenge any redactions.

12.      I took this approach because ultimately, while the plaintiff could not see unredacted documents because of the risk of revealing sensitive information it was not appropriate for the plaintiff to see, and the resulting collateral damage that might then occur, I considered it important that the plaintiff had confidence that redactions were justified because advisers to the plaintiff had had the opportunity to review those redactions to consider whether they were justified or whether they wished to make a challenge.  

13.      Access to unredacted material for such advisors was also important for a plaintiff to be advised whether the plaintiff had a case that required a trial and the extent of any claim.  In such cases a plaintiff in receipt of advice (in particular advice not in their favour), should feel confident that those providing advice are able to do so having had access to all relevant information readily available for their consideration. The appropriate balance between a plaintiff's interests and the rights of other parties is therefore struck by such advisers having access to unredacted material even if a plaintiff cannot.  It is also important for the same reasons of a party accepting why documents have been redacted to know that their advisers have been given the reasons for such redaction and are able to challenge such redactions on an informed basis.

14.      I also concluded that any other approach would not create the same level of confidence both in respect of any advice given to a plaintiff and why documents were being redacted.   

15.      One option could have been to limit discovery to the plaintiff's advocate alone, but that approach would have denied the advocate access to specialist expertise which is often necessary in this type of claim.    

16.      Another option could have been for the balancing exercise to be carried out by the defendant providing unredacted documents to the court alone, but that would have placed the court in a difficult position because the court would not have had the benefit of submissions on behalf of  the plaintiff.  Such approach could also have created an appearance of unfairness and undermined the impartiality of the judicial system.  While I acknowledge that in some cases a party will not be part of the process by which a court reviews whether or not that party should see documents (see for W v JFSC [2015] JRC 044 in relation to public interest immunity applications),   I concluded that such an approach was not in the interests of justice in relation to the case before me and similar types of applications.  It is essential, as far as can reasonably be achieved, that a plaintiff has confidence in any determination of what documents that plaintiff may see even if the plaintiff does not like the outcome of such a process. 

17.      I therefore concluded that what was required, if necessary, to determine if a redaction met the strict necessity test was argument and submissions on an informed basis from both parties' advisers on whether or not a particular redaction was justified.  While this case is not at that stage in order for such an argument to take place, (if necessary), the conclusion I reached was that both sets of advisers should be operating on a level playing field with access to unredacted documents but subject to the safeguard of those documents not being disclosable to a plaintiff. 

18.      I also made express orders that the unredacted documents could only be shared between legal advisers and specific experts authorised by me. The unredacted documents could not be discussed with anyone else or used to approach anyone else.  Any breach of any such order would be a contempt of court as well as the strong possibility of a referral to relevant professional bodies for disciplinary action. 

19.      I also directed the defendant to set out its reasons for the redactions it considered were appropriate. This followed on from the requirement clearly being on the defendant as the party seeking redaction to justify the same. I encouraged the defendant to do this by providing categories of reasons. Such reasons would be the springboard for any later assessment of the redactions applying the legal tests set out above. 

20.      The other relevant factor at this stage was that the provision of unredacted documents provided to the plaintiff's legal advisers and relevant experts, meant that, should there be a dispute about redaction in respect of a particular statement, the advisors to a plaintiff and a defendant were in a position to evaluate whether a third party should be notified of the document and consulted or even convened on a balancing exercise subject to court approval in all cases.  However, such an approach in cases of sensitivity, would very much have to be a last resort.  As the legal test is clear, the involvement of advisers for the parties should lead to a narrowing, if not agreement, on what redactions are appropriate. The approach adopted is much more preferable than all other third parties referred to in such documents being notified of the provision of documents at a stage where a plaintiff was investigating whether or not a claim existed at all and before the advisers to a plaintiff and defendant had evaluated the extent of any disagreement on redactions sought by a defendant. 

21.      The question of redaction also becomes important if a plaintiff is advised that there is a claim that could be brought which requires determination at a trial.  While it is almost trite to observe that a trial court should have before it all relevant evidence, there are complex questions in cases such as the present about who sees that evidence and how the balancing exercise should be struck between ensuring a fair trial and protecting third parties from the adverse effects of unnecessary or unwarranted disclosure. It is therefore important for those advising the parties to be able to approach how a sensitive case should proceed to trial on an informed basis to be able to  evaluate where appropriate safeguards might be built into directions that have to be issued and any evidence that has to be filed for trial.

22.      I also cannot let this judgment pass without also making it clear that what is expected in sensitive cases of this type is the fullest co-operation between the parties' advisers that can be achieved.  The question of redaction should not become a battleground.  Individuals such as the plaintiff in the present case are entitled to review decisions taken about them and, with the sort of safeguards that are referred to in this judgment, to access relevant material to enable such a review to be carried out.  From all sides requests for information to enable such a review to take place should therefore be handled sensitively and with co-operation by using the safeguards referred to in this judgment.  They should also be dealt with as promptly as can be achieved in the circumstances of each individual case. 

23.      Finally, for the avoidance of doubt, the approach set out in this decision is not in any way intended to affect the discretion vested in a court to release materials provided to it from a previous decision which have been ruled to be private but where access is sought to such materials to carry out the sort of evaluation referred to in this decision.  Examples are Public law children cases and adoptions where there are specific rules about who may see information before the relevant court dealing with the particular issue before it.  There may well have to be an application for permission to release such documents to the relevant court at an early stage.   Again a co-operative approach as far as is possible is expected in relation to such applications even though the approach of such courts to subsequent requests to release information for use in other proceedings is of course a matter for that court alone.  Although some of the issues referred to in this decision of the provision of sensitive data may arise on such applications, this decision relates to general requests for information or applications for pre-action discovery or for discovery. Similarly subject access requests are subject to the requirements of the Data Protection (Jersey) Law 2018 and the safeguards contained in that law. Such requests however should also be handled sensitively and with co-operation just as for requests that are covered by this decision.

Authorities

Secretary of State for the Home Department & Anor v R & Anor [2020] EWCA 1001.

W v JFSC [2015] JRC 017

W v JFSC [2015] JCA 060.

W v JFSC [2015] JRC 044

Data Protection (Jersey) Law 2018