DISCLOSURE IN CHILD ABUSE COMPENSATION CLAIMS – PART II JPIL DECEMBER 2008
Malcolm Johnson, Solicitor considers the issues of disclosure in child abuse compensation claims.
In the first part of this article, we considered the statutory framework around social care records, and the keeping of records by childcare agencies. In the second part, we look at some of the issues encountered when litigation begins:-
What happens if the Claimant objects to disclosure of his/her own records?
- Disclosure before proceedings start
- Disclosure after proceedings start
- Specific categories of evidence – similar fact evidence – evidence of complaints – evidence from public and other enquiries – internal emails
- Disclosure of records from the criminal and family courts – statutes and statutory instruments – public interest immunity – Children Act 1989 - Section 7 and Section 37 reports – The procedure for making an application to the Family Courts
- Criminal records and other types of checks
- Disclosure from the police and the Crown Prosecution Service – practical examples – costs
- Subsequent use of disclosed documents in another case
- Disclosure of Criminal Injuries Compensation Authority papers in the civil claim
What happens if the Claimant objects to disclosure of his/her own records?
Obviously all clients should be informed at the outset of their claim that the other side will probably want to see their records. However certain types of notes, for instance those compiled by a therapist may reveal intimate details of the Claimant’s life or alternatively, the Defendant is the abuser and wishes to see the Claimant’s medical records. The writer has had at least two cases where the client voiced an objection to disclosure of those records, which was then supported by the therapist, for whom absolute confidentiality was a crucial component of the treatment.
In the first case, the Claimant’s GP wrote a letter to the court stating that the release of these records would be detrimental to the Claimant’s mental health. In the second case, the objection was based on the client’s simple assertion that her therapist’s notes should remain confidential.
The first case came before Master Yoxall in the High Court in October 2007. The Claimant’s therapist took no part in the application although her solicitor wrote a letter voicing her objection to disclosure. In the second case, it was felt that the client’s objection would not overcome an application by the other side. However her therapist’s records did contain detailed discussions about the progress of her case and in particular sensitive advice given to her by her solicitors. These discussions were blanked out prior to disclosure and no application was made to contest that redaction.
Two of the leading decisions on this issue are Dunn v British Coal Corporation [1993] ICT 591 CA and Bennett v Compass Group UK and Ireland Limited and another [2002] EWCA Civ. 642. See also Lucas v Barking Havering and Redbridge Hospitals NHS Trust [2003] EWCA Civ 1002
In the case of Bennett, the issues fell under CPR 31.3, 31.6, 31.8 and 31.12. The Claimant had suffered a back injury and issued proceedings. The particulars of her injury were pleaded by reference to the report of a consultant orthopaedic surgeon, which quoted from the Claimant’s GP and hospital records. These records were requested by the Defendants and initially the Claimant’s solicitor said that they would be disclosed. However there was a change of mind at a case management conference. The court made an order for standard disclosure, against which the Claimant appealed on the grounds that there was no jurisdiction to compel her to sign a form of authority.
The Court of Appeal (Pill LJ dissenting) said that it was clear from Rules 31.3, 31.6 and 31.8 that the Defendants had a right to inspect the relevant GP and hospital records and furthermore that the court had power under Rule 31.12 to order a Claimant to permit a Defendant to inspect those documents. Therefore the court could in theory order a Claimant to sign a form of authority, but caution should be exercised. A Defendant should only be allowed to see a Claimant’s medical records in carefully defined circumstances. There was no doubt that the Claimant’s medical records were being sought for the limited purpose of being submitted to the Defendant’s medical adviser in connection with the examination of the Claimant. The issue of human rights was considered , but the disclosure order was upheld.
In the case of Dunn, the Claimant had injured his neck and the Defendant’s orthopaedic surgeon stated that he needed to see all of the Claimant’s records in order to determine whether there was any pre-existing problem. However the Claimant’s solicitors would only disclose those medical records relating to the Claimant’s neck and/or injuries sustained in the accident and subsequent treatment, and they refused to disclose anything more extensive.
The Court of Appeal said that all the medical records should be disclosed, not only those relating to the injury that gave rise to the claim. If it transpired that those notes might reveal an unrelated but embarrassing condition to the Defendant, disclosure should be limited to the Defendant’s medical advisers, except insofar as it was necessary to refer to matters relevant to the litigation.
The following points should be made:-
- Both of the above cases, Bennett and Dunn state that the Defendant should be allowed to view the Claimant’s medical records. However both of these cases concerned situations where the Claimant was refusing to allow the Defendant’s solicitors to see the entirety of the Claimant’s GP and hospital records. In both of the writer’s cases, disclosure had already been given of the entirety of the GP and hospital records.
- The case of Bennett confirmed that a court should think “long and hard” about making a disclosure order and regard should be had for the Claimant’s human rights.
- Neither Bennett nor Dunn suggest that the court should adopt a blanket approach to disclosure. There are limitations on the scope of the records to be disclosed and there is a point at which the court can refuse to order disclosure.
- The writer submits that if there is a valid ground for refusal of disclosure under the Data Protection Act 1998 is that of “substantial damage” or “substantial distress” to the subject of the records, it should follow that this is (at the very least) a valid ground for consideration under Rule 31.17 of the Civil Procedure Rules.
It is also submitted that the main purpose of the courts in recognising clinical confidentiality in the common law is not primarily for the protection of any one individual patient’s right to privacy, but for the good of society as a whole. If clinicians were not required to keep confidence, people would be reluctant to provide them with personal information about their physical and mental health. The relationship between the Claimant and a psychotherapist is one of the utmost sensitivity, and such a relationship is not necessarily present in the relationship between the Claimant and the GP or a psychiatrist.
We now return to the case that came before Master Yoxall in 2007. The Defendant’s psychiatrist had said that she needed to see the Claimant’s psychotherapy notes, so she could assess the credibility of what the Claimant was saying. Master Yoxall said that whilst he sympathised with the Claimant’s position and he took into account the warnings of her GP, the records requested were relevant and he would order disclosure, subject to the condition that only the parties’ psychiatrists were allowed to see the notes.
Objection carries the danger of an adverse costs order. In relation to therapists, their duty is to assert that confidentiality in answer to any claims by a third party for disclosure. Therefore it is unlikely that the court would make an order against them, but rather order their costs of disclosure to be paid by one of the parties. In relation to the Claimant, the court still retains a discretion under Rule 48.1(2) of the Civil Procedure Rules.
Whilst in practical terms it is going to be difficult to withhold disclosure of records in these cases, at the very least, the solicitor should be alive to the issues so that the client knows what is coming.
Disclosure before proceedings start
The writer’s experience is that pre action disclosure proceedings are a frequent necessity in these case, and sometimes committal proceedings have to be initiated following non-compliance with the order.
Clearly the personal injury pre-action protocol has to be followed. This means a detailed Letter of Claim, which should be as exact as possible as to precisely what happened and what went wrong in the childcare system. A useful guide can be found in the leading case of Black & Ors v Sumitomo Corporation & Ors [2001] EWCA Civ 1819 Paragraph 95 where Rix LJ said:-
“In my judgment, the more focused the complaint and the more limited the disclosure sought in that connection, the easier it is for the court to exercise its discretion in favour of pre-action disclosure, even where the complaint might seem somewhat speculative or the request might be argued to constitute a mere fishing exercise. In appropriate circumstances, where the jurisdictional thresholds have been crossed, the court might be entitled to take the view that transparency was what the interests of justice and proportionality most required. The more diffuse the allegations, however, and the wider the disclosure sought, the more sceptical the court is entitled to be about the merit of the exercise.”
The Practice Direction for the Pre Action Protocol also encourages the Claimant to set out his case clearly and identify the essential documents that he wishes to see. The writer’s practice is to take the client’s full statement prior to sending out the Letter of Claim. In relation to identification of “essential documents” Part 1 of this article dealt with the specific types of documents that are held by local authorities in various childcare situations. One example would be Regulation 17 and Schedules 3 and 4 of the Care Homes Regulations 2001.
It is also the writer’s practice to include within the Letter of Claim and statement in support of the pre-action disclosure application, a description of the Claimant’s basic rights under the Data Protection 1998 and the Freedom of Information Act 2001. Whilst the 1998 Act is not intended to be used as a litigation tool, at the very least, the Claimant’s basic entitlement to his own records should be set out.
There is another point to be made. Some of the requested information may in fact be in the public domain, for instance evidence disclosed by a public enquiry or court proceedings.
The relevant procedural rules for pre-action disclosure are set out under CPR rule 31.16. Sub paragraph (3) contains the criteria. These are:-
“ (a) the respondent is likely to be a party to subsequent proceedings;
(b) the applicant is also likely to be a party to those proceedings;
(c) if proceedings had started, the respondent’s duty by way of standard disclosure, set out in Rule 31.6 would extend to the documents or classes of documents of which the applicant seeks disclosure; and
(d) disclosure before proceedings have started is desirable in order to –
(i) dispose fairly of the anticipated proceedings
(ii) assist the dispute to be resolved without proceedings; or
(iii) save costs”
The Court of Appeal set out a two stage test in the case of Black. The first stage is jurisdictional and applies to sub paragraphs (3)(a), (b) and (c). “Likely to be a party” in (a) and (b) has been held to mean that the Claimant “may well” have a cause of action against the Defendant. There may be an argument from the Respondent that the Applicant has got the wrong Defendant, which is a real possibility where local authorities have changed their identities over the years. In relation to (c) the question of whether the documents sought would be covered by “standard disclosure”, there has to be some clarity in relation to the issues.
The second stage applies to sub paragraph 3(d). Rix LJ said in Black that the court was only permitted to consider the granting of pre-action disclosure where there was a real prospect in principle of such an order being fair to the parties if litigation was commenced, or of assisting the parties to avoid litigation, or of saving costs in any event. If there was such a real prospect, then the court should go on to consider the question of discretion, which fell to be considered on all the facts and not merely in principle but in detail.
However a court should be cautious about embarking upon any determination of the substantive issues. The fact that the Respondent may have a strong argument on limitation is not enough to prevent the court making an order.
Another point to watch is where proceedings have been issued protectively. The writer has had one such application, where the Master held that the application would not come under Rule 31.16 but rather under Rule 31.12 (specific disclosure), and consequently the criteria were different.
Disclosure of the social services file might dispose of the claim pursuant to Rule 31.16(3)(d) because an examination of the file could produce the conclusion that there is no basis for a claim. However the situation may well arise where the Applicant is the victim of abuse by a care worker in a home and wishes to see not only the social services file, but also the personnel records for the care worker. It is submitted that the care worker’s records would normally be covered by standard disclosure and if there was a history of complaints on that file, then such evidence might well be determinative of the whole action. The Applicant’s position on this point might be made stronger by the inclusion in the Letter of Claim of other evidence to show that this particular care worker had had complaints made against him or indeed that proceedings are going to be launched against him personally.
Problems may arise if the Applicant wants not only the alleged abuser’s personnel file, but also evidence of any other complaints against the abuser, which might not be contained within that file. Looking at the definition of standard disclosure in 31.6 (which is specifically mentioned in Rule 31.16), it is submitted that any such evidence is bound to adversely affect one or the other party’s case and consequently such records should be disclosed pre-action. Once again the key is to be specific about the actual request.
In sensitive cases, disclosure can be limited to the Applicant’s legal or professional advisers.
There is a presumption under Rule 48.1(2) that the person against whom the order is made will be awarded his costs, not only of the application but also compliance. In the case of disclosure of social services notes, these costs can be substantial because a great deal of time may be spent by the Respondent’s solicitors redacting the social services notes. A privately funded party would have to meet those costs then and there.
However the court has a discretion to order that the Respondent should be deprived of all or some part of his costs. In exercising this discretion the court will take into account all the circumstances, including the reasonableness of opposition to the application and compliance with the pre-action protocols. In the Bermuda case mentioned above, the Court of Appeal found that there was a “root and branch” resistance to pre action disclosure. It is submitted that where the Respondent has ignored the Letter of Claim, or failed to provide any disclosure, the Applicant should press for his costs to be paid and the Respondent to be denied any costs. Alternatively where there has been incomplete co-operation under the protocol, the Respondent may be denied his normal costs under Rule 48.1(2) as happened in the Bermuda case.
Disclosure after proceedings start
Rule 31.6 sets out the scope of standard disclosure. These include include the documents set out in the relevant practice direction. However Annex B of the Personal Injury Protocol is not helpful here. The Association of Child Abuse Lawyers has put together a suggested pre- action protocol letter for these types of claims, but it has yet to find any favourable reception with Defendants and their solicitors.
The Claimant will not necessary know the types of documents held by the Defendant. Consequently, the process of disclosure needs to be carefully monitored as the disclosure statement as set out in Rule 31.10(5) to (7) does not specifically include making a list of the types of records that might be held by an institution.
One recommended tactic is to instruct a social care expert to briefly advise on the kind of records that would be expected in a case of this nature. That may be problematic where the Defendant is not a statutory body although the Claimant could ask the Defendant to make disclosure accompanied by a statement to specifying the types of records that it did keep at the relevant time. Then a letter is sent prior to standard disclosure, giving a list of precisely what records are required.
Conversely the Defendant’s solicitors may well have no idea as what their client may have in the way records, at least not without extensive consultation. This is particular problematic when the case is historic and it may be impossible to obtain that information without asking people who were employed by them at the relevant time. The disclosure statement itself has be signed by an “appropriate person” for instance the director of social services but it is unlikely that such a person would be familiar with record keeping practices in the same authority some twenty years ago.
The writer has seen statements detailing searches at various depots, interviews with social workers and other enquiries that have failed to come up with any documentation. However such searches may be mechanical and so miss a crucial source, for instance records transferred to another archive or authority.
One option is to compel the Defendant to make a disclosure statement. Although there is no express power in Rule 31 or the Practice Direction for the court to order a disclosure statement, the court does have this power under Rule 3.1()(m) which enables the court “to take any other step or make any other order for the purpose of managing the case and further the overriding objective.” Rule 32(1) also gives the court wide ranging powers in relation to evidence.
There is of course then the option of an application for specific disclosure pursuant to Rule 31.12 as well as other remedies in the Civil Procedure Rules. The Defendant’s solicitors should file evidence in reply, and they may say that having looked for the disclosure in question, it cannot be found.
Specific categories of evidence
Similar fact evidence
Evidence that the Defendant or the Defendant’s employee has a history of abusing other in the past is bound to be powerful evidence. Documents that relate to similar fact evidence, in cases where the evidence in one transaction is relevant to another which is the subject matter of the proceedings, may well support or adversely affect a party’s case.
In O’Brien v Chief Constable of South Wales Police [2005] UKHL 26 the House of Lords dealt with the issue of similar fact evidence and considered the history of the law in this area. The Claimant had been prosecuted and convicted for murder but he was released from prison after 11 years following a successful referral to the Court of Appeal by the Criminal Cases Review Commission. He now brought a claim against the police for misfeasance in public office and malicious prosecution. He alleged that the police had resorted to specific methods which were oppressive, dishonest and unprofessional and sought to adduce evidence that the same officers had employed similar methods in two earlier cases.
Lord Bingham said at paragraph 3:-
“Any evidence, to be admissible, must be relevant. Contested trials last long enough as it is without spending time on evidence which is irrelevant and cannot affect the outcome. Relevance must, and can only, be judged by reference to the issue which the court (whether judge or jury) is called upon to decide. As Lord Simon of Glaisdale observed in Director of Public Prosecutions v Kilbourne [1973] AC 729 756 “Evidence is relevant if it is logically probative or disprobative of some matter which requires proof….relevant (i.e logically probative or disprobative) evidence is evidence which make the matter which requires proof more or less probable.”
The issue of similar fact evidence was also considered in the unreported case of Griffiths v Williams (Unreported) Court of Appeal 21st November 1995. See also DPP v P [1991] 2 AC 447 and R v H [1995] 2 All ER 865. The Claimant had been raped by her landlord, whose wife gave evidence to the fact that her husband had raped her also. The question for the Court of Appeal was whether this evidence should have been allowed by the trial judge as “similar fact.” The Court of Appeal (Millett LJ dissenting) decided in the affirmative. Rose LJ decided that Mrs Williams’ evidence was capable of supporting the view that, as this answer suggested, the Defendant’s attitude to sexual intercourse was that the woman’s consent was not a pre-requisite and that therefore her evidence went beyond mere propensity. It was evidence that was capable of being sufficiently probative despite its prejudicial quality.
There are of course cases from the criminal courts on the same issue, but it was said in O’Brien that there is a difference between the test to be applied in the criminal as opposed to the civil arena.
Evidence from public and other inquiries
Evidence used for the purposes of a public inquiry into a childcare case or a children’s home is obviously going to assist the parties. The question then arises as to whether any such documents can be used for the purposes of civil litigation without having to apply for any order under CPR 31.22 (see below). According to the text book Matthews and Malek Disclosure, Third Edition - published by Sweet & Maxwell [2007], the answer may depend on whether the documents were obtained by the inquiry by legal compulsion (i.e. a witness summons) in which case an order under Rule 31.22 would be required.
The findings of a public inquiry can have a powerful effect on the litigation. By way of example, the evidence from the Inquiry into abuse in homes in North Wales clearly influenced the judge in the case of Coxon v Flintshire County Council.
A local authority might conduct a private, non-statutory inquiry. The issue of whether evidence obtained for the purposes of such an inquiry was discloseable in litigation came up in the case of Three Rivers District Council & Others v The Governor and Company of the Bank of England [2003] EWCA Civ 474. This case arose out of the collapse of the Bank of Credit and Commercial International. The Chancellor of the Exchequer and the Bank of England had set an inquiry led by Lord Bingham – the Bingham Inquiry Unit (“BIU”). The Claimant was trying to obtain disclosure of documents prepared by employees of the Bank of England, which were to be sent to the solicitors acting for the BIU. It was agreed between the parties that the question for the court was whether such documents fell within “legal advice privilege”, which is one of the two categories of legal professional privilege (see below). Lord Justice Longmore examined the authorities from the nineteenth century and concluded that legal advice privilege could not be claimed for documents other than those passing between the client and his legal advisers and evidence of the contents of such communications. However the correct test appeared to be whether the communication or other document was made confidentially for the purposes of legal advice. The dominant purpose for which these documents were prepared was so that the Bank could comply with its primary duty of putting all relevant factual material before the BIU. Therefore the conclusion in this case was that the Bank of England was not entitled to privilege in any of the categories of document described in the judgment.
The Claimant then sought disclosure of communications between the Bank of England and their solicitors. The Court of Appeal decided that on the facts of this case, those documents were not automatically covered by legal advice privilege although some might be if their purpose was to seek specific legal advice.
However the House of Lords took a different view on the solicitors’ communications. Lord Scott said that the preparation of the evidence to be submitted and the submissions to be made to the Inquiry on behalf of the Bank were for the purpose of enhancing the Bank’s prospects of persuading the Inquiry that its discharge of its public law obligations under the Banking Acts in relation to BCCI was not deserving of criticism and had been reasonable in the circumstances. The presentational advice given by their lawyers for that purpose was advice as to what should prudently and sensibly be done in the relevant legal context. The “relevant legal context” was the Bingham Inquiry and the question whether the Bank had properly discharged its public law duties under the Banking Acts. All the communications between the BIU, the Bank’s solicitors or counsel regarding the content and manner of presentation of the overarching statement made on the Bank’s behalf to the Inquiry, and all internal notes and memoranda relating thereto, qualified for legal advice privilege
In relation to a private inquiry undertaken by a local authority into allegations of child abuse, it should not be difficult to make use of the judgments from the Three Rivers cases, particularly when the local authority’s natural stance will be to withhold any such disclosure.
Internal emails
The writer is dealing with a case against a local authority, where it is alleged that they failed to take sufficient care for a man with severe learning difficulties. Part of the disclosure consists of emails where social workers ask about the date of the last care plan (there was in fact no effective plan for a number of years), and any action taken. One email in particular comments that social services should have been alerted far sooner by the warning signs. The emails reinforce the general impression that mistakes were made and are obviously going to be use to the Claimant’s case.
The older cases involving social services will pre-date the arrival of email, but in more recent cases, emails between social workers and other professionals could provide a useful source of evidence.
Disclosure of records from the criminal and family courts
There are a great number of cases involving disclosure of records and information in the family courts. The rules of evidence in children’s proceedings tend to be inclusionary rather than exclusionary. This is because section 1(1) of the Children Act 1989 makes the child’s welfare paramount, and consequently all relevant issues are required to be brought to the court’s attention. On the other hand, the rules of evidence in criminal proceedings tend to be exclusionary in nature. The prosecution may apply to admit evidence which may be prejudicial to the defence, but this is bound to be fiercely opposed.
Statutes and Statutory Instruments
There are a number of statutes that provide for protection against identification of children involved in any court proceedings. Section 39(1) of the Children and Young Persons Act 1933 provides protection for child defendants and witnesses in criminal proceedings. The court can direct that no newspaper may identify the child or publish photographs without leave of the court.
Under section 12(1) of the Administration of Justice Act 1960 (as amended) the publication of information relating to proceedings under the Children Act 1989 or the High Court’s inherent jurisdiction over minors is a contempt of court. Section 4 of the Sexual Offences (Amendment) Act 1974 contains similar restrictions. The court also has further powers restricting publication of court proceedings under section 4(2) of the Contempt of Court 1981 section 4(2).
Section 71(1) of the Magistrates’ Courts Act 1980 states that it is a criminal offence to publicise other than limited details in relation to family proceedings and proceedings under the Adoption Act 1976.
Section 97(2) of the Children Act 1989 provides:-
“No person shall publish any material which is intended, or likely, to identify:-
“(a) any child as being involved in any proceedings before the High Court, a county court or a magistrates court in which any power under this Act may be exercised by the court with respect to that or any other child; or
(b) an address or school as being that of a child involved in any such proceedings.”
Regulation 23 of the Family Proceedings Courts (Children Act 1989) Rule 1991 and Rule 4.23 of the Family Proceedings Rules 1991 restricts disclosure of care proceedings documents to certain persons.
Children Act 1989 – Section 7 and Section 37 reports
This raises the question of reports prepared under sections 7 and 37 of the Children Act 1989. Are these discloseable? The writer submits that they are for the following reasons:-
• Firstly the duties of professionals in the childcare sphere have been re-defined by recent caselaw, where those opinions form the basis of the claim.
• Secondly there is the practical point that the court would be somewhat hampered in a negligence claim, if it could not see the reasoning behind a local authority’s decision.
• Thirdly a document will only be covered by litigation privilege if the dominant purpose for which it came into existence was that of submitting it to a lawyer for advice or use in litigation, actual or anticipated. That does not seem to be the purpose of a section 7 or 37 report .
• Fourth in Re L (A Minor)(Police Investigation: Privilege) [1996] 2 WLR 395 the House of Lords held that proceedings under Part IV of the Children Act 1989 were “investigative” rather than “adversarial” in nature and that litigation privilege was therefore excluded by necessary implication.
The writer has also had a claim where counsel was instructed by a local authority to advise specifically on whether a child should be taken into care. This was long before any litigation was contemplated and evidently the advice had been negative. That advice was requested during the course of litigation but disclosure was refused on the grounds that the advice was subject to legal professional privilege. The case settled shortly afterwards but was such a position justified?
There are two sub categories of legal privilege. One applies where litigation is contemplated or pending and is known as “litigation privilege”. The other applies whether or not litigation is contemplated or pending, and is called “legal advice” privilege. Looking at the decision of the Court of Appeal in the Three Rivers District Council case (see above) it would appear that such an advice would be covered by legal advice privilege.
Public interest immunity
This issue is commonly found in judgments dealing with applications for disclosure. Briefly it is the doctrine developed to enable the courts to protect information from disclosure, on the grounds that public interest requires it. It is commonly used by the police and other statutory bodies, in order to oppose the release of records to litigants.
In Re D (Infants) [1970] 1 WLR 599 Harman LJ explained that disclosure of such document was contrary to public policy, because these records must not be kept by people looking over their shoulders in case they should be attacked for some opinion they may feel it their duty to express. However this was a wardship proceedings case, and it is submitted that the law has moved on following the decision in JD v East Berkshire Community Health NHS Trust [2005] 2 AC 373. If the acts or omissions of psychiatrists, paediatricians and social workers are key to the case, then disclosure of their opinions should follow.
On the other hand, the court may decide that the public interest in the due administration of family proceedings may outweigh the public interest in the fair and informed administration of justice in a civil litigation claim.
Public interest immunity is not only an objection to production, but often also to the disclosure of the documents as well. There is a balance to be struck between two competing interests, the public interest in the proper administration of justice and the public interest in not harming society by releasing highly confidential state information. The Government has set out its approach to public interest immunity in an announcement on the 18th December 1996. There is no distinction between class and contents immunity, and a three stage approach is set out.
1) Is there a duty to disclose the document at all? Is it relevant to an issue in the case?
2) Does the document attract public interest immunity? Would the disclosure cause real damage?
3) The decision maker will consider the strength of the public interest in disclosing the document
Rule 31.19 deals with the issue of public interest immunity. It states that an application may be made by the person asserting immunity. The application must be made without notice and supported by evidence. If the claim is upheld, the order must not be served on any other person or be open to inspection by any other person unless the court otherwise orders. Practice Direction 6.1 states that the application does not have to be made, but if the claim to withhold inspection of a document is made, the person challenging it must apply to the court.
Under sub rules (3) and (4), the person claming public interest immunity must state that he is doing so, in his List of Documents or if there is no List to the person who wishes to inspect the document.
The procedure for making an application to the Family Courts
It is common for the guardian ad litem or the care authority to obtain an order for disclosure of the court records to the Criminal Injuries Compensation Authority. However a civil litigant will need to disclose confidential records to his own medical and social care experts as well as to the Defendant, who may not have been party to the original care proceedings.
The Claimant’s solicitor can make an application for disclosure to the original court that made the care order. The procedure for making such an application is contained within Part IV of the Family Proceedings Rules 1991 (as amended). In relation to ongoing proceedings, the application itself is brought pursuant to 4.23 of those rules using Forms C2 and C1A accompanied by a supporting statement and draft order. These forms are available from www.hmcourts-service.gov.uk in the Forms section. There is also a fee.
In Re X (Disclosure of Information) [2001] 2 FLR 440 leave was given to a local authority to disclose the judgment in care proceedings which reflected the unchallenged evidence that a party had sexually abused a number of children; and a number of the victims who were not parties to the proceedings, to the Criminal Injuries Compensation Authority. In that case, Munby J set out a very useful list of factors and interests that would need to be borne in mind.
If a care order has already been made by the family court, it will need to be carefully checked, since it may allow family related court orders and court documentation to be disclosed to an expert already appointed in order to examine the child. Note that the procedure under Regulation 4.23 may require notice of the application to be given to the local authority and in addition, any parents who are accused of abusing the child. The court may also make an adverse costs order.
It is of course possible to apply directly to the family court which may have made a care order for disclosure of the records, including the section 7 and 37 reports. The writer has done this in a litigation case, but prior to the actual issue of proceedings. It is suggested that making such an application after the issue of proceedings might create a conflict between two courts, insofar as a family court would not apply the Civil Procedure Rules. A Defendant might be justified in objecting to the use of a different jurisdiction.
Criminal records and other types of checks
In child abuse compensation claims, one of the most useful sources of information is going to be the abuser’s criminal record as well as information in the hands of the police or other statutory authorities. As we will see, the present system of checks covers a wide variety of child protection situations and is becoming increasingly complex. There is now more willingness on the part of the courts to find that the police may be responsible for failing to deal with a real and serious threat of harm by one person against another. Certainly the failure of an employer to check an employee’s record properly is bound to be a key point in any Claimant’s case.
Criminal records are held on the Police National Computer (“PNC”), which was introduced in 1974 and is based at Hendon. It serves all police forces in England and Wales. Information is protected by the Official Secrets Acts 1911 and 1989. The information on that database goes back before 1974, and in one of the writer’s cases, a conviction was disclosed from 1936.
In relation to police checks against sex offenders, there have been arrangements in place for some time. From the 1st February 1964, upon implementation of the Children and Young Persons Act 1963, the Secretary of State asked Chief Officers of Police to notify children’s officers where a person was convicted of various specified crimes against women or children. The notification usually related to a last known address. So if the police knew that such a person was residing at a children’s home, this would have been made known to the area local authority. The Sex Offenders Act 1997 set up a National Register of convicted child sex offenders. This was followed by the Crime and Disorder Act 1998 which allowed the police to monitor the activities of people subject to those orders. The Protection of Children Act 1999 then created a framework for identifying people unsuitable to work with children
The Criminal Justice and Courts Services Act 2000 requires the police and probation services to set up joint arrangements for the assessment and management of offenders at high risk of causing serious harm. The Sexual Offences Act 2003 (sections 80 and 81) widened the list of persons who have to be registered as sex offenders.
Government departments also have their own lists. The Department for Children, Schools and Families produces “List 99”, which contains the names of persons disqualified from working in education. The Department of Health has a “Consultancy Service Index” list which contains the names of persons considered unsuitable to work with children, and which was placed on a statutory basis by the Protection of Children Act 1999. It provides information on a list of persons compiled from police reports, local authority, voluntary organization reports and List 99 reports. Regulated child care organizations are required to refer for inclusion the names of individuals considered unsuitable to work with children. The Department of Health now holds a further list, the Protection of Vulnerable Adults List, in effect a list of those persons considered unsuitable to work with vulnerable adults.
The Criminal Records Bureau itself has been operational since April 2002. It acts as a central access point for criminal records information (i.e. convictions), List 99 and the Consultancy Service Index list. It is a “one stop shop” for background checks on potential employees and is available to employers, volunteer organizations, professional bodies and certain licensing authorities.
The new Safeguarding Vulnerable Groups Bill was due to be implemented in 2008. This will create a single list of persons barred from working closely with children, which will replace List 99 and the Protection of Children Act) List. This list will be aligned with the Protection of Vulnerable Adults List. All those employing individuals to work closely with children will be required to check barred status, except where the employment occurs in the context of private family arrangements.
Disclosure from the Police and the Crown Prosecution Service
The police and the Crown Prosecution Service are involved in numerous applications for evidence. Consequently there is substantial caselaw in this area.
In relation to civil litigation, the procedure for non-party disclosure is contained within CPR 31.17, the provisions of which have been considered in a number of cases, in particular Three Rivers District Council v the Bank of England.
Sub paragraph (2) of CPR 31.17 says that the application must be supported by evidence and sub paragraph (3) then sets out the conditions for making an order. The word “only” in sub paragraph (3) emphasises that disclosure from third parties is the exception rather than the rule. For instance, only in exceptional factual circumstances would a court be justified in civil proceedings in ordering disclosure of a non party’s confidential medical data. A v XB (Non party) [2004] EWHC 447 QB.
There are two conditions to be satisfied in sub paragraph (3)(a) and (b). (3) (a) says that the court can only make an order where the documents sought are likely to support or adversely affect the applicant’s or some other party’s case. “Likely” means “might well.” (3)(b) says that disclosure is necessary in order to dispose fairly of the claim or to save costs. Essentially the court has a broad discretion but where the court makes an order under CPR 31.17 for disclosure of a class of documents, it has to be satisfied that all the documents falling within the class do in fact exist and disclosure will not be ordered if the class is too wide. As with pre-action disclosure, it will help the application if the Claimant specifies precisely what documents he requires.
Scott Baker LJ said in Rowe v Fryers Paragraph 13 of the judgement [2003] EWCA Civ 655 that once the conditions in sub paragraphs (3)(a) and (b) were satisfied, public interest considerations fell to be taken into account, and if necessary, to be balanced. Those public interests were clearly identified in the case of Taylor v Director of Serious Fraud Office [1999] 2 AC 177. The first was the right of people giving assistance to the police to expect confidentiality, and the second the need to ensure a fair trial on full evidence.
Scott Baker LJ said at paragraph 38:-
“Tomlinson J said in the Three Rivers case that if disclosure of the documents in question is shown to be necessary in the interests of litigation, then that need overrides confidentiality. However, in such a case, the court will be concerned to see whether the needs of the litigation can otherwise be satisfied, e.g by considering redactions, disclosure, from other sources or other appropriate means. There is to my mind no absolute rule. The public interest in ensuring a fair trial in the light of all the relevant evidence is nevertheless in my judgment of the utmost importance and one that inevitably weighs heavily in any balancing exercise. However as has been pointed out, there are circumstances in which it is overridden. Legal professional privilege, without prejudice communications and the need to protect the identity of an informer are cited as examples.”
The conclusion in Rowe was that there was no automatic immunity attaching to interviews under caution taken in the course of investigating ordinary allegations of criminal conduct, and the interviews were ordered to be disclosed under CPR, Rule 31.17.
There is however authority for the proposition that certain types of informants are protected. By way of example the NSPCC were able to withhold disclosure of documents identifying an informant who had wrongly suggested that a mother was beating her child. Similarly in Re X (Minors) disclosure of information relating to children in wardship proceedings, was refused for the purposes of a libel claim. In the case of Powell v Chief Constable of North Wales The Times, February 11 2000 the Court of Appeal found that in the context of civil litigation, the countervailing interest of a civil litigant suing for money was not as strong as that of the accused in criminal proceedings whose liberty was at stake.
Practical examples
The following are practical examples of disclosure applications made by the writer against the police.
Case One
This was a police investigation arising out of allegations made against a stepfather in 1986 by his children. There was an arrest but no prosecution. The following records were obtained:-
• A record of the criminal convictions/cautions showing the abuser’s actual and alternative names. These were all offences for dishonesty and went back to 1936.
• A copy of the transcript of the police taped interview with the abuser redacted as necessary
• The crime report relating to the allegations of sexual abuse made against the abuser by the Claimants, redacted as necessary.
The police were not prepared to release the report prepared by the Crown Prosecution Service as to whether there should be a prosecution of the Defendant.
Case Two
This was a police investigation into a children’s home in 1976, which resulted in the conviction of a senior care worker. The problem here was that the police indicated that whilst they were prepared to release the criminal convictions records for two alleged abusers, the process of finding records from the 1976 investigation would be a long and expensive process costing several thousand pounds. At that time, the client was privately funded and did not have the necessary. However the following records were released:-
• The PNC printout for the first abuser (showing a conviction for multiple sexual assaults in 1973 (shortly before he came to work in the care home) and traffic offences in 1983
• PNC printout for the second abuser showing multiple offences for theft going back to 1938 and sexual assaults going back to 1948 as well as the 1976 offences. There was also one offence for sexual assault in Scotland and the final conviction was in 1990.
The case settled shortly thereafter.
Case Three
This case concerned an employee at a council leisure facility who was convicted of abusing a number of children from the 1970’s up to early 2000. The order required the police to serve a List of Documents in Form 265, which List was to disclose the names and addresses of all witnesses.
Further disclosure was ordered of:-
• The transcript/tapes/videos of any interviews of the abuser
• A note of the formal charges made against the abuser in relation to the Claimants.
• The record of convictions
• The abuser’s criminal record (in this case there was no prior criminal record)
In this case there had been two police investigations in 2000 and 2006, a not uncommon feature in historic cases. It was only the second investigation that resulted in the abuser’s conviction, thus demonstrating the importance of ensuring that the order sought covers all previous police investigations.
Costs
The Respondent non-party will normally be awarded his costs of the application and in complying with the order. In police investigation cases, such costs can be substantial. A great deal of work may need to be done actually locating the documentation, checking its contents and redaction. Consequently it is important to try and secure an order to the effect that any such costs are going to be payable by the Defendant. The court can make a variety of orders depending on the circumstances.
Subsequent use of disclosed documents in another case
There are restrictions on the use of evidence in one case for the purposes of another. CPR Rule 31.22 says that:-
“A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except…..”
The exceptions are, where the document has been read or referred to in a public hearing, the court gives permission, or the party making disclosure gives consent. The same principle applies where the transfer is from the criminal courts to the civil courts.
In Taylor and Others v Serious Fraud Office Lord Hoffman said that a solicitor or litigant who received documents by way of disclosure is treated as if he had given an undertaking not to use them for any purpose other than the conduct of the litigation. This was in reality an obligation. The rationale behind imposing an obligation of this nature was that disclosure was a very serious invasion of the privacy and confidentiality of the litigant’s affairs. The public interest in securing that justice was done was considered to outweigh the private and public interest in the maintenance of confidentiality.
The undertaking could be varied or released by the courts if the interests of justice so required, and unless the court otherwise ordered, ceased to apply when the documents had been read to or by the court, or referred to, in proceedings in open court. Lord Hoffman referred to RSC Order 24 Rule 14A, which has now been replaced by CPR Rule 31.22.
There are also a number of cases from the family courts. In Re D (Minors)(Wardship) it was held that a judge in the exercise of his discretion must balance the importance of confidentiality in wardship proceedings and the need for frankness by persons giving evidence in the wardship court, against the public interest in seeing that justice is done in a wider context.
A similar approach was taken by the Court of Appeal in Re Manda (Wardship: Disclosure of Evidence) where the parents of an elective mute won the right to disclose the wardship papers to an expert for the purposes of a negligence claim against a local authority, health authority and a consultant paediatrician. It was held that where disclosure is sought to assist a party in other areas of litigation, the public interest in the administration of justice required that all relevant information should be available for us in those proceedings.
By contrast we have the case of In Re X and Others (Minors) (Wardship : Disclosure of Documents) where the court declined to order the disclosure of wardship material relating to children in the Cleveland child abuse cases to a newspaper being sued for libel by two paediatricians.
Disclosure of Criminal Injuries Compensation Authority papers in the civil claim
The writer has been involved in a case where the Defendant’s solicitor in the litigation requested disclosure of the CICA application.
The request was refused. Rule 31.6 (standard disclosure) of the Civil Procedure Rules requires a party to disclose documents on which he relies, and the documents that adversely affect his or another party’s case. However the CICA application itself would not normally be a document on which the Claimant would rely in the civil claim.
Certainly much if not all of the evidence in support of the application would form part of the disclosure in the civil claim. However this evidence would be disclosed in the normal course of directions. It is not immediately apparent as to why the CICA application itself, the supporting statement and any applications for review or appeal would have any bearing on evidence in the civil claim. In the case mentioned above, the Defendant’s solicitors never stated precisely why they wanted to see the CICA application and in the absence of any reasons for disclosure, it is submitted they were “fishing” for evidence. In any event, the claim was discontinued and the matter never came before the court.
At the same time, the Claimant’s fear is that there is something in the CICA application that might prejudice his civil claim. For instance, it is perfectly possible to obtain a higher award from the CICA because the civil claim is hampered by a weakness such as negligence. In such circumstances, it may be helpful to disclose counsel’s advice to the Authority, particularly where that advice made it clear that whilst the chances of proving the abuse were strong, the issue of negligence would be far more difficult. The CICA would certainly be concerned about limitation issues, but they would approach this issue in a very different way to a civil court. The writer has attended one hearing before the Appeals Panel, where counsel’s advice proved very useful in persuading the Panel to make an award, despite the failure of the civil claim. Privilege could of course be claimed for an advice.
The other problem is that the inquisitorial nature of the CICA scheme encourages the applicant to be very much more open about all aspects of the case, and consequently any statement in support of the application, might well reveal a very different strategy and presentation to that which appears on a Particulars of Claim. Moreover the CICA are entitled to refuse an application on the issue of non-cooperation with the police, and that kind of issue might add ammunition to the Defendant’s case on limitation.
The Defendant’s solicitors told us that many other solicitors co-operated with this kind of request. The writer remains cautious.
Conclusion
This concludes these two articles on the subject of disclosure in child abuse compensation claims. It remains a difficult area, but it is hoped that readers will take something away with them and the writer welcomes comments or accounts of courtroom experiences.
