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31 JAN 2013

Durham County Council v D [2012] EWCA Civ 1654; (2013) PLLR 001

Local authorities - care homes - allegations of abuse - damages - disclosure of information - redaction - correct procedure - Data Protection Act 1998 - Civil Procedure Rules - public interest immunity - balancing - Article 6 and Article 8 European Convention on Human Rights

Where a individual sought disclosure of documents as part of an evidence gathering exercise pursuant to a claim for damages for abuse suffered whilst in local authority care, the correct regime for determining whether or not disclosure should take place was the Civil Procedure Rules and not the Data Protection Act 1998. The fact that a local authority was trying to resist disclosure did not automatically require a consideration of public interest immunity. The correct approach was to apply the relevance test and balance the right to a fair trail of those seeking disclosure against the rights of anyone who might be affected by disclosure.

13 December 2012

Court of Appeal

Maurice Kay, Munby and Tomlinson LLJ

(1)        The appellant local authority (DCC) challenged the decision of HHJ Armitage QC to allow disclosure of unredacted information held by it. The defendant (D) sought disclosure of the information as part of a claim for damages for alleged abuse suffered whilst resident in a care home which was DCC's responsibility. The solicitors of each party had proceeded on the basis that the question of disclosure was governed by the Data Protection Act 1998 (the 1998 Act).

(2)        DCC argued that, although the first appeal judge had found, correctly, that the judge at first instance had erred in applying principles belonging to the 1998 Act, the decision to allow disclosure of redacted information should stand as the judge had taken essentially the right approach in carrying out a balancing exercise.

(3)        Maurice Kay LJ (with whom Munby and Tomlinson LLJ agreed) held (i) that the references to the 1998 Act had been misleading. The regime set out by the 1998 Act was not strictly one of disclosure. The question of disclosure in this case was properly to be dealt with under the Civil Procedure Rules [16] - [19]. (ii) That it was misleading to refer to a duty to protect data as if this were a category of exemption from disclosure. CPR31 enabled and required the court to prevent disclosure on public interest grounds. The issues in the instant case could not properly be described as public interest immunity. Rather, the role of the court was to balance a party's right to a fair trial both at common law and under Article 6 of the European Convention on Human Rights, and the rights of an opponent or third party to privacy or confidentiality, usually under Article 8 of the Convention. What amounted to an appropriate balancing exercise would depend on the circumstances of the case; however, it could not be said that all cases in which a public authority sought to avoid disclosure were cases of public interest immunity in the strict sense. The documents in this case were not dissimilar to social work files and should be subjected to the same approach (Re R (Case: Disclosure; Nature of Proceeding). (iii) The correct approach to be taken involved, firstly, determining whether the relevance test had been satisfied. Relevance could include "train of inquiry" points which amounted to more than mere fishing expeditions. Secondly, it is for any party which would be adversely affected by disclosure to seek exemption. Thirdly, a balancing exercise should be conducted, taking into account the right to a fair trial of the party seeking disclosure the privacy or confidentiality rights of the other party or any third party. Fourthly, non-disclosure should only be permitted where strictly necessary. Fifthly, in some cases it may be necessary to make a limited order allowing for redaction, confidentiality rings, anonymity in the proceedings or other such measures. Any such limitation must be strictly necessary [23]. (iv) Although the appeal judge erred in making reference to the 1998 Act, he undertook the necessary balancing act and applied the test of strict necessity. This approach was substantially correct and his conclusion would stand [24] - [25].

Appeal dismissed

Key paragraphs

[1] - Introduction

[2] - The DPA

[3] - the CPR

[4] - [15] - Procedural history

[16] - [24] - Discussion

[25] - Conclusion. 

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