Kerry Underwood


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Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

The law relating to data disclosure is in a mess and the courts, as usual, are left to try and sort out poorly drafted and conflicting legislation passed by Parliament often, one suspects, with very few Members of Parliament considering what they are voting on.

A central issue is the conflicting policies set out on the one hand in the Data Protection Act 2018 and its predecessors and on the other hand in the Freedom of Information Act 2000 , with whistleblowing protection and the Public Interest Disclosure Act 1998 adding a further layer of complication.

A first step may be to have a single Act dealing with all of these issues, including legal professional privilege, that is both litigation privilege and legal advice privilege, common interest privilege, Without Prejudice and client confidentiality, and whistleblowing.

Withholding Information, Legal Professional Privilege and Section 42 of the Freedom of Information Act

In Norman Fearn v Information Commissioner (EA/2018/0124) (17 December 2018)

the First-tier Tribunal (General Regulatory Chamber) (Information Rights) held that the public interest favoured the withholding of information concerning a council’s future litigation costs, under section 42 of the Freedom of Information Act 2000, which is  a qualified exemption and applies to information which could be subject to legal professional privilege in legal proceedings.

Section 42(1) provides that:

Information in respect of which a claim to legal professional privilege…could be maintained in legal proceedings is exempt information.

By section 2(2)(b) the Tribunal must balance the public interest in maintenance of the exemption on the one hand and disclosure of the information on the other.

The information requester asked Chalfont St Peter Parish Council for information concerning litigation brought against it that was ongoing at the time of the request and the tribunal’s decision.

Specifically the information requester asked:

[1] What costs have been incurred so far in this lawsuit?

[2] What further anticipated costs are included in the budget as the action proceeds?

[3] What provision has been made for a possible award against the Council if liability for the [respondent’s] costs is imposed on the Council?

The council provided details of the costs that it had incurred so far, but in relation to budgeted future costs it provided only a partial response and it withheld altogether its calculated exposure to the costs of the claimant, and cited section 42(1).

The Information Commissioner upheld the council’s decision to withhold the information.

The requester appealed and the essence of his appeal was in paragraph 5 of his grounds:

I have contended that information about possible future costs should not be secret. It cannot affect the legal argument any more than actual cost to date, some of which has been disclosed. As a parishioner I am entitled to know. For a Parish Council this expenditure is very large, the motive is unclear and the action offers no apparent benefit to the Council or the parishioners. It is noticeable that the chief beneficiary of the secrecy will be the solicitor who recommended it.

The tribunal dismissed the appeal of the information requester.

It held that section 42 was engaged and that the information concerned litigation privilege rather than legal advice privilege, both of which are types of legal professional privilege.

Applying the public interest test the tribunal held that this came down in favour of withholding information as disclosure could:

  • undermine the council’s litigation strategy and give its opponents in the litigation a “practical, or at least psychological, advantage” ( paragraph 17);
  • expose the council’s assessment of its prospects and, in turn, the nature of the legal advice it had received;
  • prejudice the public interest in an effective legal system, and the local community’s financial interests if the council achieved a poorer outcome in proceedings.

The tribunal added that it was not in the public interest for citizens to influence the litigation strategies of public authorities.

The tribunal also said that had the request been retrospective in relation to concluded litigation, then that would have been a “different proposition”.

The powerful public interest argument based on possible prejudice to current litigation would not have applied and the council’s objection to disclosure would have been less compelling.

The Tribunal also went through the relevant case law.

Access to Court Documents by Non-Party 

In R (on the application of British American Tobacco (UK) Ltd) v Secretary of State for Health [2018] EWHC 3586 (Admin) (20 December 2018)

the High Court, in judicial review proceedings brought by the tobacco industry concerning regulation of tobacco packaging, exercised the court’s inherent jurisdiction to allow an intervener under CPR 5.4C(2) access to documents on the court file, even though some of them might not fall within the scope of the Civil Procedure Rules.

The intervener, a non-governmental organisation campaigning for a reduction in tobacco use, had obtained copies of pleadings under CPR 5.4C(1) and now sought expert reports, witness statements and various letters referred to in the pleadings, arguing that they would aid universal understanding of tobacco packaging issues.

The defendant objected to disclosure on the ground that trial witness and expert statements were outside the ambit of CPR 5.4C(2).

The court held that where possible, the court should exercise its power under CPR 5.4C(2)  in favour of disclosure.

Open justice case law does not require that the reasons for seeking access should be determinative.

Where there are no issues of confidentiality or security, or any other claim which might serve to limit disclosure, a non-party should be entitled to disclosure upon request and without further justification.

Documents that judges have been invited to read to themselves during or before the hearing are an integral part of the proceedings even though attendees at court might be unaware of their content and relevance.

Courts can order disclosure to give effect to open and transparent justice, even in cases not covered by formal rules of procedure.

Pre-Action Disclosure

In Lacey v Leonard [2018] EWHC 3528 (QB) (20 December 2018)

the Queen’s Bench Division, on appeal, upheld the Master’s decision to refuse pre-action disclosure under CPR 31.16 to a defendant, effectively an insurance company, in a serious road traffic accident claim where the claimant had indicated that damages of £750,000 would be claimed.

In spite of the claimant providing almost no information,the High Court upheld the Master’s decision to refuse disclosure on the basis that pre-action disclosure of medical records relating to the accident would not assist in resolving the dispute without proceedings, nor lead to a saving of costs. Consequently the preconditions for pre-action disclosure in CPR 31.16 were not satisfied.

Following the decision in

Wells v OCS Group Ltd [2009] 1 WLR 1895

the court said that it is expert medical reports and not raw data which may or may not be relevant and which are likely to form a basis for settlement.

The court said that it had sympathy for the insurers in being faced with an unparticularised claim for such a large sum, but CPR 31.16 was not satisfied.

I am grateful to Nick Hanning, a consultant at Anthony Gold Solicitors for information concerning the Lacey v Leonard case.

Pre-Action Disclosure Refused

In Pharmacy2u Limited v The National Pharmacy Association,

a Chancery Division master dismissed an application for pre-action disclosure under CPR 31.16. The judgment considers the meaning of “proceedings” in CPR 31.16 (3)(d) and sets out factors which may count against such disclosure being “desirable” within that rule, which reads:

“(3) The court may make an order under this rule only where –

(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”. 

Pharmacy2u is the United Kingdom’s largest online pharmaceutical retailer and the National Pharmacy Association is a long established trade association representing 3,202 members.

The association distributed a notice to its members, for display to the public, pointing out that Pharmacy2u was nothing to do with the pharmacist and the fact that Pharmacy2u had been fined £130,000 for selling patients’ details to marketing companies, including an Australian Lottery, had failed to send out prescriptions for three weeks over Christmas 2015 and had been found by the Care Quality Commission to be “not safe, effective or well lead.”

None of these facts is disputed by Pharmacy2u, but it said that the National Pharmacy Association had infringed its trade mark by using it in the notice.

The claimant sought pre-action disclosure of the names and contact details of all members to whom the notice had been sent or by whom it had been downloaded, contending that this information was necessary to enable it to understand the extent of the damage and so that it could contact the members to address ongoing harm.

It was common ground that CPR 31.16 (3)(a) -(c) were satisfied and thus the issue was whether it was desirable under (d).

The court held that the order was not necessary in order for the proposed claimant to understand the extent of the damage, as the claimant had sufficient information to plead its case and the respondent had identified the number of its members involved.

As to the meaning of proceedings, the court held that this meant the proceedings against the respondent to this application and not against anyone else, but that if it was wrong about that, then disclosure was not necessary to dispose fairly of these proceedings. Rather, it was to enable the proceedings to be brought by supplying the contact details of potential defendants.

In any event, the disclosure sought was neither necessary nor desirable. The respondent, as the alleged primary wrongdoer, would be liable for any damages and there was no suggestion that it could not pay, nor that it would fail to instruct its members to stop distributing the notice and to destroy any copies.

It was not necessary for the claimant to join the respondent’s members in order fairly to resolve the claim, and it was neither desirable nor proportionate to order disclosure to enable claims to be made against 3,202 members for alleged minor infringement.

The court also had this to say:

“31. In this context, assuming, again for the sake of argument, that NPA has a good defence to P2U’s claim, then there is a risk that the effect of providing P2U with the members’ names and contact details will be that NPA will not have the opportunity to establish that defence. If P2U writes letters before claim to the members, threatening proceedings, injunctive relief, and orders for significant damages and costs, the practical reality is that most members are likely not to involve themselves in contested litigation for all the usual reasons, even if supported by NPA. They were not responsible for the wording of the Notice; and have no direct knowledge of its truth or falsity. There is a serious risk, therefore, that P2U would therefore be able to “pick off” the individual members, without ever having to submit to a judicial determination of the merits of its claim.

32. These concerns are reinforced to a degree by P2U’s conduct to date. When it first wrote to NPA in December 2017, it alleged that the statements in the Notice were untrue, and threatened claims for defamationand malicious falsehood. Following NPA’s solicitors’ response, these were withdrawn. In addition, Mr Strachan’s evidence is that P2U’s solicitors wrote to him personally, threatening to make a complaint about him to the General Pharmaceutical Council. Finally, Mr Strachan also gives evidence of a GP practice which, having displayed the Notice received correspondence he describes as “very intimidating”, instructing them to remove it and threatening to report them to their regulatory body, the General Medical Council. This evidence was not challenged in P2U’s evidence in reply.”

The court also declined, for the same reasons, to make a Norwich Pharmacal Order, that is an order for the provision of information as per the case of Norwich Pharmacal v Customs and Excise Commissioners.

Non-Party Disclosure: Necessity Test To Be Applied Flexibly

In Sarayiah v Royal and Sun Alliance Plc and others,

a High Court judge allowed an appeal by an applicant litigant in person and granted a non-party disclosure order against the respondent insurance company. It held that the lower court had erred in refusing to make the order on the basis that the applicant should have made a specific disclosure application under CPR 31.12 against another party.

The court rejected the argument that a non-party disclosure application should not succeed if the documents are available from another source, meaning that disclosure is not “necessary” to dispose fairly of the claim or to save costs.

Rather, the flexible Norwich Pharmacal approach to necessity should be applied to CPR 31.17applications.

Here, the applicant had sued his sisters for harassment and alleged that they had removed him as an interested party on an insurance policy, causing him considerable loss.

He sought disclosure from the respondent of a tape recording of a telephone call between the sisters and the insurance company concerning the policy change.

The lower court refused his application, stating that he should have sought specific disclosure from the sisters. The applicant then applied to a different judge for such specific disclosure, but it was refused on the erroneous basis that the sisters lacked control of the tape recording, the sisters having failed to tell the judge that they did in fact have a copy of that recording.

On appeal, the High Court judge said that he could not see what considerations the lower court judge had taken into account, except his view that the applicant had alternative means of obtaining the disclosure, which he apparently, and wrongly, regarded as preventing a non-party disclosure order.

The lower court had failed to consider the relevant factors, such as the applicant’s position as a litigant in person seeking a document which the respondent had in its possession.

The lower court had also failed to consider the sisters’ unwillingness to cooperate and whether an application under CPR 31.12 would have been problematic, which in fact it turned out to be.

Here, the criteria in CPR 31.17 were met and it would be disproportionate to require the applicant to make yet another application, this time under CPR 31.12, to obtain disclosure of the tape recording.

The court held that an order for disclosure against the respondent was necessary to dispose fairly of the claim.

Defendant Succeeds In Pre-Action Disclosure Application

In EUI Limited v Charles and others,

the County Court ordered the claimants to give pre-action disclosure of documents relating to impecuniosity in a credit hire case.

Here the applicant insurer was facing potential actions by seven individuals whose cars had been damaged in accidents. All of them had hired alternative vehicles from credit hire companies and the defendants sought, and obtained, disclosure of bank statements and wage slips for the three months before the hire.

A claimant can normally only claim a basic hire rate, but an impecunious claimant can claim the full credit hire charge, not limited to the basic hire rate, provided that the full charge is not unreasonably high.

Impecuniosity is also relevant to the period of hire, and therefore the issue of the claimants’ finances is generally central to such cases.

Here, the applicant insurance company successfully argued that it should be able to assess if a potential claimant is impecunious in order that it could value and settle the claim without litigation if appropriate.

Successful applications for pre-action disclosure by defendants are rare.

Each case will depend upon the facts, but the decisions here and in Sarayiah may indicate a more liberal approach by the courts to pre-action disclosure applications.

The Pharmacy2u case goes the other way, but that is unsurprising on the facts, and given the general conduct of Pharmacy2u.

The general lesson here is that all litigators should always consider the issue of an application for pre-action disclosure, bearing in mind the current establishment view that litigation should only be engaged in as a last resort.


Written by kerryunderwood

January 16, 2019 at 9:48 am

Posted in Uncategorized

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