Collette Turner & Anor v Sheffield Teaching Hospital NHS Foundation Trust & Anor

Documents generated during an independent healthcare-safety investigation may be ordered to be disclosed by a non-party where they may well assist in resolving the claim, disclosure is necessary for a fair disposal, and the balance of interests favours disclosure. A confidentiality or safe-space principle is not absolute. It may yield to overriding public interest or legal compulsion, including a court order necessary for a fair trial. The court must consider each application on its facts. The existence of another possible route to obtain the documents does not necessarily defeat necessity. Where contemporaneous interview records are central to disputed factual issues and witness recollection may have changed, disclosure may be required despite confidentiality concerns.

The claim concerned alleged negligent treatment during the birth of the second claimant, who suffered severe brain injury shortly after birth. The claimants sought transcripts or recordings of interviews given by midwives during an investigation by the Healthcare Safety Investigation Board (HSIB).

They made applications for disclosure against the defendant NHS Trust and HSIB. The Trust argued that the documents were not within its control because HSIB and the midwives were separate legal persons. HSIB relied on the safe-space principle and the potential effect of disclosure on its investigations. The court therefore had to determine whether the documents were within the Trust’s control and whether third-party disclosure was justified under CPR 31.17.

1. Application against the Trust. The audio recordings and transcripts were documents for the purposes of CPR 31. The applicable meaning of control was the established principle in Lonrho v Shell [1980] 1 WLR 627: a party must have a presently enforceable legal right to obtain inspection or copies without needing another person’s consent. The midwives were separate legal persons from the Trust when participating in HSIB interviews. Their role in those interviews was distinct from their role in preparing clinical treatment notes. The documents were therefore not within the Trust’s control. The Trust could not reasonably require employees to obtain and hand over records generated within the safe-space process.
2. Third-party disclosure test. Under CPR 31.17, the court applied the staged approach explained in Flood v Times Newspaper [2009] EWHC 411: first, whether the documents may well assist a party’s case or adversely affect another party’s case; secondly, whether disclosure is necessary to dispose fairly of the claim or save costs; and thirdly, whether the court should exercise its residual discretion after balancing the relevant interests. The stages had to be addressed sequentially.
3. The first stage was satisfied because the midwives’ recollections were central to the disputed events. The second stage was also satisfied. Contemporaneous accounts could materially assist the trial judge, particularly because recollection may change during litigation, as explained in Gestmin v Credit Suisse [2013] EWHC 3560 (Com). The possibility of obtaining the documents through an informal approach to the midwives did not defeat necessity, especially where that route was unlikely to produce prompt disclosure.
4. At the discretionary stage, the safe-space principle was important but not absolute. The relevant Directions expressly contemplated disclosure where there was overriding public interest or legal compulsion. The court balanced HSIB’s interest in preserving confidentiality against the claimants’ interest in a fair trial and the wider public interest in the proper determination of serious allegations. The documents were central to the factual issues, and disclosure was necessary for an Article 6-compliant trial. Those considerations outweighed the confidentiality interests in this case. The approach did not create a general rule requiring disclosure of HSIB material; each case remained fact-specific.
5. The application against the Trust was dismissed. The application against HSIB was granted, and HSIB was ordered to disclose the transcripts or recordings sought.

First-instance decision. No prior appellate decision is stated in the judgment.