Thomas Cole v Marlborough College

In subject access litigation, a claimant challenging reliance on an exemption is not entitled, during disclosure or inspection, to obtain the very documents or information whose withholding is in issue. The principle applies irrespective of the particular exemption relied upon. Inspection would confer the substance of the relief sought before entitlement to that relief had been established.

The court may inspect the disputed material and determine the issue without providing it to the claimant. Confidentiality clubs do not provide a general alternative, particularly where the claimant is unrepresented or the information is the central subject of the claim. Questions concerning the procedure at trial remain for the trial judge.

The claimant brought a data protection claim alleging that Marlborough College had failed properly to comply with a subject access request. The college had withheld or redacted documents containing the claimant’s personal data, relying on paragraph 16 of Schedule 2 to the Data Protection Act 2018, concerning information relating to another identifiable individual.

At a case management hearing, the issue of inspection was separated for determination by a High Court judge. The claimant sought access to the disputed documents so that he could challenge the college’s application of the exemption. The central question was whether the college could withhold those documents from inspection pending determination of the substantive claim.

1. The court answered the Master’s question affirmatively. The defendant was entitled to withhold from inspection, in whole or in part, documents containing the claimant’s personal data which it asserted it had been entitled to withhold under paragraph 16 of Schedule 2 to the Data Protection Act 2018 (paras [32], [37]-[38]).

2. The reasoning in X -v- The Transcription Agency LLP [2024] 1 WLR 33 was not confined to the judicial exemption. Its underlying principle was that a person challenging the application of an exemption could not obtain, through the litigation process, the information whose withholding was being challenged. That principle applied equally to the paragraph 16 exemption (paras [23]-[25], [31]-[32]).

3. The claimant’s proposed use of a confidentiality club did not alter the result. Such arrangements are unsuitable as a general solution where the claimant is unrepresented, and are particularly problematic where the confidential material is the very focus of the litigation. The court referred to the dangers identified in Browning -v- the Information Commissioner [2014] 1 WLR 3848 and to the observations in SCRL Limited -v- NHS Commissioning Board [2019] PTSR 383 (paras [33]-[37]).

4. The decision concerned only the inspection phase. The trial judge would determine whether the court needed to inspect the disputed documents and whether a closed procedure or special advocate was required at trial (para [39]).

5. The issue was discrete and separately heard. The claimant was ordered to pay the defendant’s costs of the hearing, applying the ordinary rule that costs follow the event (paras [40]-[42]).