Henry v News Group Newspapers Ltd & Ors

The background against which these applications are made, under CPR 31.17, is the libel claim brought by Ms Henry against News Group Newspapers Ltd following a campaign in The Sun in 2008 making serious allegations about her conduct as a social worker in the months prior to the death Peter Connelly in August 2007. There is a defence of justification in relation to alleged acts or omissions on her part between 11 December 2006 and 24 January 2007.

News Group Newspapers Ltd now seeks third party disclosure against the Whittington Hospital NHS Trust and the Commissioner of Police of the Metropolis with a view to assisting its defence.

The terms of CPR 31.17 need to be carefully borne in mind throughout:

“(1)

This rule applies where an application is made to the court under any Act for disclosure by a person who is not a party to the proceedings.

(2)

The application must be supported by evidence.

(3)

The court may make an order under this rule only where–

(a)

the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings; and

(b)

disclosure is necessary in order to dispose fairly of the claim or to save costs.

(4)

An order under this rule must–

(a)

specify the documents or the classes of documents which the respondent must disclose; and

(b)

require the respondent, when making disclosure, to specify any of those documents–

(i)

which are no longer in his control; or

(ii)

in respect of which he claims a right or duty to withhold inspection.

(5)

Such an order may–

(a)

require the respondent to indicate what has happened to any documents which are no longer in his control; and

(b)

specify the time and place for disclosure and inspection.”

It would thus seem to be the case that it would not justify such disclosure if documents in a certain category appeared to assist the case of the applicant’s adversary. An application will only succeed if the documents in question assist the applicant’s case or go to undermine that of one of his adversaries.

It is for the applicant to establish not only “relevance” in that sense, as contemplated by sub-rule 3(a), but also “necessity” as required by 3(b).

The court will be aware throughout of the exceptional and intrusive nature of this jurisdiction. It should never be regarded as a matter of routine. The conditions for making an order, as identified above, will need to be strictly fulfilled. The court will always need to be wary of categories which are loosely or unnecessarily broadly defined and to be alert for requests which appear to be of a “fishing” nature.

Since the hearing began, towards the end of last term, the issues have somewhat narrowed so far as the Commissioner is concerned – not least because of voluntary disclosure which was made shortly thereafter.

There are now remaining in issue three categories of documents:

I shall address these in turn.

The Internal Management Reviews

It was argued on behalf of the Commissioner that it was doubtful whether these documents fell within the terms of sub-rule 3(a) but that, in any event, the Applicant has not established the necessity for such disclosure in order to dispose fairly of the claim or to save costs.

In addition, reliance was placed on a general public interest argument in relation to such documents as a category. The purpose of such reports is to be used for internal purposes with a view to learning lessons and improving the ways in which the police force fulfils its responsibilities. It is said that those who contribute to the IMR process do so on the understanding that their contributions and the content of any subsequent report would remain confidential. This leads to a freer exchange of frank and open views. If there was an apprehension that such communications might later be published, this would be likely to have an inhibiting effect.

Reference was made to Taylor v Anderton [1995] 1 WLR 447 where it was held by the Court of Appeal that reports and associated working papers prepared during investigations into police conduct, under the supervision of what was then the Police Complaints Authority, constitute a class which is entitled to protection by way of public interest immunity. It is said that the IMR process is, for this purpose, analogous.

These would be important factors to address if only the necessity were shown. But I accept counsel’s submission that this has not been achieved.

Notes of interviews

It has been explained that DC O’Brien and DI McMorrin had no involvement in the case of Peter Connelly between 11 December 2006 and 24 January 2007 and therefore any notes of interviews conducted with them would be irrelevant.

As to the remaining three officers, it was accepted on behalf of the Commissioner that it was probable that such notes had existed. To date, however, it seems that it has not been possible to locate them. Unless and until they are found, it would not be possible to form a view as to whether the contents of the documents fulfil the criteria identified in either sub-rule 3(a) or sub-rule 3(b).

Correspondence with the London Borough of Haringey

I understand from counsel that the only documents which fall within the relevant category are:

The contents of the fax in question were recorded in full in the CRIS report for 12 December 2006, which has been voluntarily disclosed. The minutes of the strategy meetings have already been provided to the Applicant by the London Borough of Haringey. It would follow that further disclosure from the Commissioner would not fulfil the “necessity” criterion.

Naturally, there was a request from the Commissioner that any documents disclosed on his behalf should be covered by an order made pursuant to CPR 31.22(2) for the purpose of restricting the use of the documents. That is entirely appropriate and I would have taken that course, but in the event it does not arise.

I turn to the application against the NHS Trust. I am most grateful to Ms Bradley who carefully took me through a bundle of the records in her client’s possession and made submissions as to the potential relevance of each document.

Before I address those issues, which I believe I can do compendiously, I will consider some general submissions. She argued that one of the factors to be borne in mind, if the court reaches the stage of carrying out a balancing exercise, is that the traditional duty of confidence owed by medical practitioners can effectively continue beyond a patient’s death – even in circumstances where a good deal of material has come into the public domain: Lewis v Secretary of State for Health [2008] LS Law Med 559, Foskett J. Moreover, one aspect of such a duty is the need to assert it where an application has been made to the court to obtain confidential records and to raise every argument that can be put in favour of maintaining their protection: see A Health Authority v X [2001] 7 Lloyd’s Rep Med 349, Munby J, and [2002] 4 Lloyd’s Rep Med 139, CA.

Ms Bradley also reminded me of the strict criteria that need to be fulfilled before the court makes an order under CPR 31.17. One should not order disclosure of documents that appear to provide merely background or material that might be useful in cross-examination. That I accept.

Next I was taken through the medical records still within the possession of the Trust, consisting of just over 100 pages. Ms Bradley submitted that in most cases, if not all, they would hardly fulfil the threshold criteria of “relevance” or necessity and that accordingly the court would not reach the stage of balancing the competing interests (of honouring confidentiality, on the one hand, and of serving the interests of justice on the other).

Various points were recurrent. For example, it was quite apparent that the Defendant already had some of the documents from other sources, in particular from the London Borough of Haringey. Others merely recorded information that had been elicited in the criminal trial in 2008. Others were of a purely administrative nature and threw no light on the issues one way or the other.

It seemed to me, however, that the Defendant would need to have as full a picture as possible of any communications of substance between the Trust and the Social Services Department. At page 59 of the bundle there is a reference to a message left for Ms Henry on 12 January 2007. That, for what it is worth, would appear to be new information. I would therefore direct disclosure of the relevant entry. Although there is a similar message on page 60, relating to another message left a few days later, that appears to be within the Defendant’s knowledge already (from page 65 of the trial transcript) and therefore cannot fulfil the necessity test.

So too, on page 64 there is a reference to a contact with Social Services by J Carroll. I will direct that page also to be released.

At page 34 there is reference to the initial referral on 11 December 2006, but I do not believe it adds anything to the Defendant’s knowledge.

At page 53, there is a note relating to the strategy meeting on 12 December 2006, but this seems to have been covered at pages 33-34 of the trial transcript and does not take matters further.

At page 56, there is a note of Ms Henry being informed that the bone scan had proved impossible at 3.30 pm on 14 December 2006. I cannot see that it assists one way or the other. Also there is a reference on 13 December to the issue of Peter being allowed home, but that was covered in the trial transcript at pages 58 and 76.

At page 58, there is an entry on Peter’s discharge from hospital on 15 December. It does not assist the Defendant’s case. If anything, it might assist the Claimant. At all events, it does not fit the relevance criteria.

Apart from these few items, I saw nothing in the Trust’s papers which I was satisfied was relevant or necessary in the sense I have indicated.