NCC v AH & Anor

There is no freestanding entitlement to disclosure of evidence after proceedings have concluded. Disclosure exists to support a fair trial, so it will not ordinarily be ordered for collateral purposes such as challenging reports, making professional complaints or pursuing libel proceedings. Documents prepared for proceedings remain confidential to the court and cannot be used for an unconnected purpose without permission. The court may control disclosure of expert evidence, including by withholding it from a party. In Court of Protection proceedings, the general rule is that there is no order as to costs. Departure requires consideration of all the circumstances, including conduct, partial success and the role of any public body. Proper conduct by the public authority and the absence of a determination will generally provide no basis for departure.

NCC brought proceedings under the inherent jurisdiction and in the Court of Protection concerning AH, who was treated as a potentially vulnerable adult. The proceedings were later withdrawn after an expert concluded that AH lacked capacity in none of the matters assessed. Issues remained concerning applications by AH and DH for disclosure of expert reports and Social Services records, and for their costs to be paid by NCC.

NCC and the Official Solicitor opposed disclosure because the proceedings had concluded and the documents were sought for collateral purposes. They also opposed the costs applications. The central questions were whether disclosure could properly be ordered after the proceedings had ended and whether the general costs rule should be displaced.

1. Disclosure. The applications by AH and DH for disclosure of the expert reports and Social Services records were dismissed. The reports had been prepared solely for the proceedings and had not been disclosed under orders made during those proceedings. Disclosure is part of the process by which the court ensures a fair trial. Once proceedings have been determined, there is no freestanding entitlement to disclosure.
2. The documents were sought to challenge allegedly damaging comments, make a complaint to the General Medical Council and possibly bring libel proceedings. Those were collateral purposes and did not justify disclosure or permission to use the reports. The court could identify no basis for varying the earlier non-disclosure orders. The Social Services records were also not disclosed; in addition, they had never been adduced as evidence and the judge did not consider that he had power to order their disclosure.
3. The reports and papers filed for proceedings in private were confidential to the court. They could not be used for an unconnected purpose without the court’s permission. The principle that a party must know and be able to answer the evidence relied upon against them did not assist once there was no prospective trial.
4. Costs. No order as to costs was made. Under rule 157 of the Court of Protection Rules 2007, that was the general rule. There was no justification for departing from it. NCC had acted properly and in accordance with its obligations, the proceedings had concluded without a determination, and there was no point at which NCC should have discontinued earlier. Dr Khouja’s costs formed part of the proceedings’ costs and required no separate order.
5. The judge accepted that AH had received no assurance that her earlier costs would be paid. NCC had also acted properly in bringing and continuing the inherent-jurisdiction proceedings in response to concerns about AH’s welfare. The Official Solicitor and his solicitors were ordered not to disclose the withheld documents or Social Services records to AH, because doing so would undermine the judgment and risk satellite litigation.