Anthony Dixon v North Bristol NHS Trust

The claimant applied for an interim injunction to restrain the defendant NHS Trust from disclosing two documents (an MHPS outcome letter and Document X) to a defined group of former patients and their legal advisers. The court applied the s.12 Human Rights Act 1998 threshold for prior restraint of material engaging Article 10 and the American Cyanamid principles where appropriate, considered the law of breach of confidence, misuse of private information and the UK GDPR/Data Protection Act 2018. The judge found that some of the material had the necessary quality of confidence and that the claimant had shown likely detriment, but concluded that confidentiality and privacy interests were outweighed by the defendant’s countervailing interests, notably obligations under Regulation 20 (duty of candour), the clinical negligence pre-action protocol/ADR process and disclosure considered necessary for prospective litigation. The court therefore refused the interim injunction application on the basis that the claimant had not satisfied the s.12 threshold and, alternatively, that damages would be an adequate remedy.

Background and parties: The claimant, a former consultant, sought an interim injunction to prevent the defendant Trust disclosing an MHPS outcome letter and another document (Document X) to a limited set of former patients and their solicitors. The proposed disclosure had been notified by the Trust and the Trust gave an undertaking not to disclose until the court determined the application.

Nature of the application: The claimant pleaded breach of contract (incorporation or implication of MHPS confidentiality), breach of confidence and/or misuse of private information, and breaches of data protection (UK GDPR and Data Protection Act 2018). He sought a declaration of unlawfulness and an injunction restraining the proposed disclosure (and, alternatively, orders under s.167 DPA 2018/Article 79 GDPR).

Issues framed:

• Whether the documents had the necessary quality of confidence and whether the Trust’s intended disclosure would be unconscientious use amounting to breach of confidence or misuse of private information;
• Whether processing and disclosure of the claimant’s personal data would be lawful under Articles 5 and 6 UK GDPR and/or exempt under Schedule 2 DPA 2018;
• Whether pre-action disclosure or voluntary disclosure made in the context of ADR and the clinical negligence pre-action protocol, and the statutory Duty of Candour (Regulation 20), justified the proposed disclosure; and
• Whether the s.12 HRA threshold for prior restraint was satisfied so that an interim injunction should be granted.

Court’s reasoning and disposition: The judge accepted that some material in the documents was prima facie confidential and that disclosure would cause detriment, but emphasised the claimant’s failure to particularise the private information relied upon for the misuse of private information and data protection claims. The court balanced the claimant’s confidentiality/privacy interests against the defendant’s legitimate interests: the defendant’s assessment that the documents were necessary for compliance with the pre-action protocol/ADR process and the Trust’s duty of candour were found to be weighty countervailing considerations. The judge concluded the claimant was not likely to establish at trial, on the s.12 test, that publication should be prohibited, and refused the interim injunction. The court also held that the defendant was likely to establish lawful processing under Article 6(1)(c) and/or (e) and the relevant DPA exemptions. The judge further concluded that, even if the threshold were met, damages would likely be an adequate remedy in the circumstances.

The claimant's application for an interim injunction was refused. The court held that, while some of the material had the necessary quality of confidence and disclosure would cause detriment, the claimant had not satisfied the s.12 Human Rights Act 1998 threshold of being likely to establish at trial that publication should not be allowed. The defendant’s countervailing public interest considerations, including the statutory Duty of Candour (Regulation 20), the clinical negligence pre-action protocol/ADR process and the need to disclose for prospective litigation, were likely to justify disclosure. The court also concluded the defendant was likely to show the processing was lawful under Article 6(1)(c)/(e) UK GDPR and that Schedule 2 DPA 2018 exemptions were engaged; alternatively damages would be an adequate remedy.