London Borough of Lambeth v AM (Judgment No. 2)

A public authority may protect the identity of a person who confidentially reports concerns about a child’s care, health or development. That confidentiality serves the wider public interest and does not end when the authority’s investigation concludes, or because the information is disclosed in a redacted subject access request. A person who deliberately defeats redactions and examines, retains or uses the information may breach confidence. Malice by the informant is relevant but is not, by itself, enough to establish the public interest or iniquity defence. The court must assess the nature and degree of the alleged misconduct and balance it against the strong public interest in preserving confidential referrals.

The claimant local authority brought a claim against the defendant, the father of a child who had been the subject of a confidential referral to Children’s Services. The authority had disclosed its file to him under a subject access request, attempting to redact the informant’s identity. The defendant electronically defeated the redactions, identified the informant, retained the unredacted information and used it in correspondence threatening proceedings.

The authority sought final injunctive relief, destruction of the unredacted material and related orders. The central issues were whether the informant’s identity was confidential, whether the defendant received it in circumstances importing an obligation of confidence, whether his conduct was unauthorised and detrimental, and whether the alleged malice of the informant established a public interest defence.

1. Claim allowed in substance. The defendant breached the duty of confidence owed to the claimant by removing the redactions, examining and retaining the unredacted file, refusing to return or destroy the information, and using it in a pre-action letter threatening proceedings against the informant. He also wrongfully threatened further use of the information. Final injunctive relief was therefore justified, with consequential terms to be determined after judgment.
2. The court applied the three essential ingredients identified in Coco v A.N. Clark (Engineers) Ltd [1968] F.S.R. 415: confidential information, communication in circumstances importing an obligation of confidence, and unauthorised use causing detriment. The relevant information was the informant’s identity, which was confidential to the informant and the authority, not to the defendant.
3. The public interest in confidential referrals about children extends beyond protecting an investigation. It encourages members of the public to report concerns and supports the authority’s ability to protect children. The court followed the reasoning in Re A (A Child) (Family Proceedings: Disclosure of Information) [2012] UKSC 60. The identity did not cease to be confidential when the investigation ended, and the defendant’s prior lack of knowledge was established on the evidence.
4. Under Inerman v Tchenguiz [2010] EWCA Civ 908, a person may be restrained from examining, copying, retaining, distributing or using obviously confidential documents obtained without authority. The defendant’s method of defeating the redactions was deliberate and unauthorised.
5. Malice was not enough to defeat public interest immunity. However, fraud, criminality or other reprehensible conduct might support an iniquity defence. The applicable test required assessment of the nature and degree of the informant’s conduct, followed by a balance against the powerful public interest in maintaining confidentiality. The factual inquiry was directed to the informant’s conduct and state of mind, not to conducting a full child-care investigation. Objective evidence supporting the concerns could tell against malice.
6. The court rejected the allegations that the referral was malicious or knowingly false. It found that the referral was well-intentioned and motivated by genuine concern for the child’s welfare.

Not stated in the judgment.