Morley v Nottinghamshire Healthcare NHS Trust & Anor

An application for disclosure supporting a possible application to adduce further evidence on appeal may be refused where it is speculative, premature and made too late. Such an application should ordinarily be made to the trial judge, with sufficient time for any necessary evidence and adjournment to be addressed. The court may also refuse requests for witness statements where the underlying views are already sufficiently apparent and the proposed inquiry would improperly explore the minutiae of a decision-maker’s reasoning.

The claimant, a tariff-expired discretionary life prisoner, challenged his transfer from Rampton Hospital back to prison under sections 47, 49 and 50 of the Mental Health Act 1983. Mr Justice Burton refused judicial review on all grounds. Permission to appeal was granted on limited grounds, and the substantive appeal was due to be heard shortly.

Pending that appeal, the claimant sought disclosure of records or witness statements concerning the views of members of the Sex Offender Treatment Programme Team, together with medical records. The health authority agreed to provide the medical records. The issue was whether the remaining disclosure should be ordered.

1. Application refused. The application sought documents or statements from members of the treatment team to support a possible application to adduce further evidence on the appeal.
2. The request had the hallmarks of a fishing expedition. The relevant views were already clear in broad terms from the material before the court. It was therefore inappropriate to require witness statements from the proposed witnesses.
3. The application was also made far too late. An application of this kind should ordinarily have been made to the trial judge. If further evidence were required, the need for an adjournment and the scope of that evidence should have been addressed at that stage.
4. Even if correspondence with the respondent’s solicitors had been unhelpful, an experienced solicitor should have issued an application and proceeded against the backdrop of a return date. It was wholly inappropriate to wait until shortly before the appeal hearing.
5. If the claimant succeeded on the proposed amendment point, the court could then consider whether further evidence was appropriate, potentially including evidence from other members of the clinical team. The court expressed grave doubts about exploring in depth the minutiae behind the Responsible Medical Officer’s decision, but did not determine that issue.

• High Court: Mr Justice Burton refused the claim for judicial review on all grounds.
• Court of Appeal (Civil Division): Permission to appeal was granted on limited grounds. The present disclosure application was refused.