R v W Primary Care Trust

Pre-action disclosure should be ordered where the statutory and procedural conditions are satisfied and disclosure has a real prospect of fairly disposing of the anticipated claim, assisting settlement or saving costs. The court must then exercise its discretion on all the circumstances, including the clarity of the issues, the nature and scope of the documents, proportionality, and any competing confidentiality or welfare interests.

Confidentiality and privacy interests do not create an absolute bar. The court must balance them against the public and private interests in a fair trial and effective legal advice. Disclosure may be limited by carefully framed conditions, but staged disclosure should not be ordered where it would cause delay and expense without sufficient advantage.

The applicant, a child acting by his grandmother and litigation friend, sought pre-action disclosure from a primary care trust under section 33(2) of the Supreme Court Act 1981 and CPR 31.16. The proposed claim concerned allegedly negligent treatment between 1998 and 2002, including failure to diagnose Asperger’s Syndrome and attention deficit disorder earlier.

The respondent had made partial disclosure. It opposed further disclosure on the grounds of possible harm to the child and the confidentiality and privacy interests of his mother, whose information appeared in the records. The issues were whether full disclosure should be ordered, what conditions should govern access, and how the costs of the application should be dealt with.

1. Pre-action disclosure. The court adopted the principles stated in Moresfield Ltd et al. v Barnes [2003] EWHC 1602 (Ch). The applicant had to show that both parties were likely to be parties to subsequent proceedings, that the documents would fall within standard disclosure, and that pre-action disclosure was desirable to dispose fairly of the anticipated proceedings, assist resolution without proceedings or save costs. The court then had to exercise its discretion on the facts in detail. Disclosure was not automatic, but a focused complaint and limited request supported an order.
2. Competing interests. The approach in Campbell v Thameside Metropolitan Borough Council (1982) 1 QB 1065 and Regina (S) v Plymouth City Council (2002) 1WLR 2583 required a balance between confidentiality, privacy and welfare interests and the public interest in the administration of justice. Here, disclosure to legal and medical advisers for the defined purpose of assessing the child’s potential claim was sufficiently confined. The interests of a fair trial prevailed.
3. Extent and conditions of disclosure. Full disclosure was ordered. A two-stage process would probably increase expense and delay and would prevent advisers from forming a properly informed view. The child was not to be shown or told the contents. Information relating to the mother was not to be disclosed to her if her advisers considered it irrelevant to the issues arising in the potential claim. Disclosure was not restricted solely to professional advisers because the grandmother’s knowledge was important to testing the accuracy and completeness of the records.
4. Data protection and responsibility for safeguards. The Data Protection Act 1998 did not prevent disclosure for legal advice or prospective legal proceedings. Where a legitimate objection could be met by a protective condition, the respondent should identify the condition rather than require the applicant to propose successive solutions. The respondent’s objection concerning disclosure to the child was legitimate, but its failure to propose the agreed safeguard was unreasonable.
5. Costs. Although CPR 48.1 made the respondent’s costs the usual order, the respondent’s opposition was not wholly reasonable. Nevertheless, the applicant was not entitled to recover costs because the confidentiality issues properly required determination. Each party was therefore ordered to pay its own costs.

First-instance application; no prior or appellate decision is stated in the judgment.