Marsh v Ministry of Justice & Anor

Disclosure must be confined by the pleaded issues and remain proportionate to what is genuinely necessary for a fair determination. Where relevant material engages public interest immunity or privacy rights, the court must balance those interests against fair-trial rights. Non-disclosure is permissible only where strictly necessary. The court should consider safeguards short of total non-disclosure, including redaction, confidentiality arrangements, anonymity and restrictions on use. Disclosure is therefore not a binary choice.

The claimant brought a personal injury claim against his former employer arising from his suspension and disciplinary investigation while employed as a prison guard. The Chief Constable of Surrey Police, a non-party, had disclosed extensive material to the defendant and sought to withhold some documents. The defendant also sought orders concerning public interest immunity, redactions and third-party information.

The court determined issues of disclosure, inspection, proportionality, public interest immunity and protection of third-party privacy interests. It also considered allegations of apparent bias arising from delay and closed hearings.

1. Outcome. Disclosure of specified material was withheld on grounds of public interest immunity. The court approved limited disclosure concerning identified third parties, while permitting redaction of personal details of others. Costs were costs in the case.
2. Disclosure principles. Standard disclosure under Civil Procedure Rules 1998 r 31.6 was limited to documents on which a party relied, documents adversely affecting or supporting a party’s case, and documents required by a practice direction. Relevance was governed by the pleaded issues. Proportionality informed both disclosure and inspection, and the court retained broad powers to regulate disclosure.
3. Public interest immunity. Applying the principles in Dunn v Durham City Council [2012] EWCA Civ 1654, disclosure arose only where the relevance test was satisfied. Any dispute required a balancing exercise involving fair-trial rights, privacy and confidentiality interests, and competing Convention rights. Denial or restriction of disclosure had to be strictly necessary. A restricted order could protect the relevant interests through redaction or other safeguards.
4. Application. Three documents held by Surrey Police were irrelevant and, in any event, disclosure would have been withheld in the public interest. The defendant’s general disclosure exercise was lawful, although it had been overcautious concerning the claimant’s personnel records and disciplinary transcripts. Redaction of Group B personal details was strictly necessary, given their minimal relevance and the individuals’ Article 8 rights.
5. Bias. The fact that the Ministry of Justice was a defendant did not create a real possibility of bias. Applying Porter v Magill [2002] 2 AC 357, the fair-minded and informed observer would attribute delay to the pressures and circumstances of judicial work rather than bias.

First-instance judgment determining disclosure, inspection, public interest immunity and third-party redaction applications. The judgment records that an earlier appeal by the claimant had failed, but gives no citation for that appeal.