Aven & Ors v Orbis Business Intelligence Ltd

A court may defer deciding whether a witness must answer questions about confidential sources until the disputed questions arise in evidence. This is appropriate where the precise scope of the proposed questioning remains unsettled and the court can determine, question by question, whether an answer should be compelled or excluded. The court retains a discretion to exclude relevant questions or evidence, but a ruling on the wider legal principles is unnecessary where the requesting party narrows its application and accepts that non-identifying questions may be asked.

This was a procedural ruling during the trial of claims for remedies under the Data Protection Act 1998 concerning a memorandum containing allegedly inaccurate personal data. The claimants alleged breaches of the Fourth Data Protection Principle and relied on the statutory remedies for inaccurate data. The defendant relied, among other matters, on paragraph 7 of Schedule 1, Part II, and resisted questions concerning the identity and characteristics of confidential sources used to compile the memorandum.

The claimants sought a ruling permitting questions seeking non-identifying information. The central issue was whether the court should determine in advance the extent to which the defendant’s witness could be required to answer questions about sources.

1. Procedural ruling. The court declined to determine in advance the precise ambit of questions concerning the defendant’s confidential sources. The claimant had withdrawn the request for a comprehensive ruling and instead sought permission to ask non-identifying questions.
2. Discretion. It was common ground that the court had a discretion to exclude relevant questions or relevant evidence. The court considered the area legally interesting and complex, but found it unnecessary to resolve the wider principles for the purposes of the present ruling.
3. Questions to be addressed when they arise. The witness would be permitted to adopt the position taken so far. If a disputed question was asked, the court would decide whether the witness was entitled to refuse an answer on the asserted basis, including whether the answer might identify a source. The court accepted that this approach might create procedural uncertainty, but considered that risk manageable.
4. Further determination. The court expected to determine, at the conclusion of the evidence, whether the witness had been entitled to refuse any particular answer. No final ruling was made on the scope of source confidentiality or on the merits of the claims.