RFV v The Personal Representatives of John Middleham (Deceased) & Ors

Non-party disclosure is exceptional. The court must apply a three-stage test: whether the documents may well support or adversely affect a party’s case; whether disclosure is necessary to dispose fairly of the claim or save costs; and whether discretion should be exercised. Necessity requires consideration of practicable alternative sources and all the circumstances. Even where the threshold is met, disclosure may be refused where it would unjustifiably interfere with a non-party’s Article 8 rights. Disclosure may instead be ordered in a limited form, protecting third-party identities while preserving relevant factual events.

The Applicants sought non-party disclosure in a personal injury claim arising from a road accident. They alleged that non-accident-related family circumstances might explain or contribute to the Claimant’s psychiatric and psychological presentation.

Applications were made against an NHS trust for safeguarding records, the Secretary of State for the Home Department for immigration records concerning the Claimant’s mother, and Birmingham Children’s Trust for social-services records. A safeguarding letter initially thought to concern the Claimant was revealed during the hearing to concern her sister, an 18-year-old non-party who opposed disclosure. The court determined whether the documents satisfied the statutory and procedural conditions for non-party disclosure and, if so, how the competing privacy rights should be balanced.

1. The governing test. Applications under section 34(2) of the Senior Courts Act 1981 and CPR 31.17 require three questions: whether the documents may well support the applicant’s case or adversely affect another party’s case; whether disclosure is necessary to dispose fairly of the claim or save costs; and whether the discretion to order disclosure should be exercised.
2. “Likely to support” means “may well”, rather than more probable than not. Necessity is flexible and requires consideration of whether essential information can be obtained by another practicable means, together with the circumstances of the case. The jurisdiction remains exceptional, including where disclosure is unopposed.
3. MASH documents. The documents concerning the Claimant’s sister were relevant because the family dynamic could affect causation. Once her identity was disclosed, however, unredacted disclosure was no longer necessary. In any event, the sister’s highly confidential information concerning alleged abuse and suicide attempts, her vulnerability and non-party status, and the public interest in clinician-patient confidentiality meant that disclosure would not be ordered. The relevant part of the First Application was dismissed.
4. Claimant’s safeguarding records. Records concerning safeguarding issues affecting the Claimant might well affect causation, were necessary because the experts required them to give informed opinions, and were ordered to be disclosed.
5. Immigration records. Records concerning the Claimant’s mother were relevant and necessary because they could establish the timeline and perceived or actual risk of removal. Disclosure was ordered insofar as the documents concerned the Claimant or her mother, with the personal details of other children and third-party adults redacted. The court was not required to vet the documents itself.
6. Social-services records. The redactions were obstructive, but wholly unredacted disclosure was unnecessary. Disclosure was ordered with redactions limited to names and other identifying features of third parties, while preserving the factual events. The applications were therefore granted or refused in the terms set out at paragraph 66.

First-instance decision on three applications for non-party disclosure. The First Application was dismissed insofar as it concerned the MASH documents and granted insofar as it concerned safeguarding documents relating to the Claimant. The Second and Third Applications were granted subject to specified redactions.