Durham County Council v Dunn

Once civil proceedings are underway, disputes about disclosure and inspection are governed primarily by the Civil Procedure Rules 1998, not by the Data Protection Act 1998. The latter does not create a separate data-protection exemption from ordinary disclosure obligations.

Where a document is relevant, including because it supports a proportionate train of inquiry, the court must balance the requesting party’s fair-trial rights against the privacy and confidentiality rights of affected parties and non-parties. Disclosure or inspection may be withheld only where that is strictly necessary. Any restriction, including redaction, anonymity or limited use, must itself go no further than strict necessity requires.

The claimant alleged that, while resident at a local-authority young people’s centre between 1980 and 1984, he had been assaulted by members of staff and had witnessed violence towards other children. He brought a damages claim against the local authority.

Following standard disclosure directions, the Council disclosed material with redactions and resisted inspection of personnel records and information identifying former residents. A District Judge permitted only limited unredaction. On the claimant’s first appeal, His Honour Judge Armitage QC ordered disclosure of the disputed material in unredacted form.

The Council’s second appeal raised the central question whether the disclosure dispute was governed by the Data Protection Act 1998 or by the Civil Procedure Rules 1998, and how the competing interests of a fair trial and third-party privacy should be balanced.

1. Appeal dismissed. The disclosure issue arose within an existing civil claim and at a case-management hearing. It was therefore governed by the Civil Procedure Rules 1998, particularly Part 31, rather than by the Data Protection Act 1998 as a freestanding regime. A pre-action data-access request under section 7 may be useful, but it is limited to communicating personal data in intelligible form. It does not determine disclosure of relevant documents in litigation.

2. Section 35 of the Act confirms that the data-protection non-disclosure provisions yield where disclosure is required for litigation. The court must decide the issue under the CPR. A supposed general duty to protect data is not an independent category of exemption from disclosure or inspection.

3. The court formulated the applicable approach. First, the document must be relevant; this can include a proportionate train of inquiry and excludes mere fishing expeditions. Secondly, the party or person seeking protection must assert the exemption. Thirdly, the court must balance the claimant’s common-law and Article 6 fair-trial rights against the Article 8 privacy or confidentiality rights of parties and non-parties. Fourthly, withholding disclosure or inspection is justified only where strictly necessary. Finally, any restriction must also be strictly necessary and may take the form of redaction, a confidentiality ring, anonymity or another limited order.

4. The Court rejected a broad treatment of local-authority records as automatically protected by public interest immunity. Consistently with Re R (Care: Disclosure: Nature of Proceedings), [2002] 1 FLR 775, their treatment depends on the particular documents and competing rights. Some records, such as material identifying informers, may still attract protection.

5. Judge Armitage had incorrectly treated the Act as adding requirements to the CPR and had placed the strict-necessity burden on the claimant. Those errors favoured the Council. His essential balancing exercise and conclusion were nevertheless correct: the claimant had a legitimate need to identify potential witnesses, while the proposed careful and litigation-only use of the information adequately protected non-parties. The Court proposed safeguards restricting disclosure beyond the parties and their legal advisers, and restricting use to the proceedings unless the County Court ordered otherwise.

• Court of Appeal (Civil Division): The Council’s second appeal was dismissed in [2012] EWCA Civ 1654. The order requiring unredacted disclosure was upheld, subject to proposed safeguards for non-parties.
• Manchester County Court, His Honour Judge Armitage QC: The claimant’s appeal from the District Judge was allowed. The Judge varied the disclosure order so that the disputed documents were to be disclosed unredacted.
• Manchester County Court, District Judge Fairclough: On a case-management hearing, the District Judge ordered disclosure with redactions protecting the identities of the claimant’s family members and other former residents.