Insights

Chris Ward

Published 16 May 2024
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Third Party Disclosure Principles

In the case of Turner v Sheffield Teaching Hospital NHS Foundation Trust [2023] EWHC 3452 (KB) in the autumn of 2023, the court considered the issue of Third Party disclosure applications and the issues to be applied in determining them.

The Facts

The Claimant (a child) brought an action (by way of his mother and litigation friend) for negligence against an NHS Trust. The Claimant was born healthy but developed a severe injury shortly after his birth. The circumstances of this injury were investigated by the Third Party (the Healthcare Safety Investigation Board).

During the course of the proceedings, the Claimant brought applications for specific disclosure against the NHS Trust and for disclosure against the Third Party. The applications were in respect of transcripts or recordings of interviews given by midwives (employees of the Trust) during the Third Party investigation.

The NHS Trust resisted the application on the basis that the documents were not in its custody or control. The Third Party resisted the application on the basis that disclosure would undermine their investigations. The issues therefore came to be decided by Master Brown in the High Court.

The Master concluded that in this case with a severely injured Claimant and a trial anticipated, what was said in these transcripts was central to the issue to be decided and that there should be disclosure by the Third Party.

The application for disclosure against the Trust  

In respect of the NHS Trust, the provisions governing the application for disclosure are contained in CPR 31.12. In particular, 31.8(2), which states:

“A party has or has had a document in his control if:

(a), it is or was in his physical possession.

(b) He has or has had a right to possession of it; or

(c) he has or has a right to inspect or take copies of it”.

The Trust argued, “that ‘control’ meant a presently enforceable legal right to obtain from whoever actually holds the document, inspection of it, without the need to obtain the consent of anyone else”. The Claimant argued that the midwives should be regarded as servants or agents of the Trust. Secondly, the Claimant argued that the Trust could demand that the midwives obtain these transcripts, and should they do so then the documents would be disclosable.

The Master held that in respect of this issue, the transcripts made by the Trust’s employees were not in the Trust’s control.

The application for disclosure against the Third Party

The relevant provisions governing this application are set out at 31.17 and provide:

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”.

On deciding the matter, the Master also considered:

  • The Safe Space principle” set out in the 2016 Directions which underlies the work carried out by the third party, namely, “contributions that are comprehensive and candid are more likely to be made where they may be made in the confidence that they will be used not for purposes of apportioning blame or establishing liability but for purposes of identifying improvements or areas for improvement”.
  • The test to be applied as set out in Flood v Times Newspaper [2009] EWHC 411, namely:
  • Disclosure against third parties should be regarded as the exception rather than the rule.
  • The first requirement is that any documents sought must be shown to be likely to support or adversely affect the case of one or other party. The question to be asked in each case is whether they are likely to help one side or the other. The word ‘likely’ should be taken to mean that the document or documents ‘may well’ assist.
  • The second hurdle to overcome is to demonstrate that disclosure of the documents sought is ‘necessary’ in order to dispose fairly of the claim or to save costs. This only arises for consideration if the first hurdle has been surmounted.
  • Thirdly, there is a residual discretion on the part of the Court whether or not to make such an order – even if the first two hurdles have been overcome.  At this stage the broader considerations come into play, such as the public interest and any infringement of third party rights.

The decision

The Master concluded that he had absolutely no doubt that the documents requested would assist the determination of the case. He also rejected the suggestion that the hurdle of necessity was not met because the Claimant’s solicitor could approach the midwives and ask them whether they would seek the transcripts. The Master considered this unrealistic. The Master concluded that in this case, the interests of a fair trial on the facts outweighed the interests of others in preserving confidentiality.

Two particular factors that the Master took into account were the fact that firstly, the Safe Space principle is itself subject to some limitation with 6 (c) of the Directions providing that “there is an overriding public interest or legal compulsion; in those circumstances, disclosures can be made”.

Secondly, he took into account the information pack given to witnesses when being interviewed by the Third Party which stated, “Information provided at interview is treated as confidential, but may be disclosed in certain judicial or legal circumstances.”

Comment

The Third Party expressed real concern that an order for disclosure would undermine their function and role. However, the Master was not persuaded by this. Clearly, this decision was very much decided on its own unique facts, and it remains to be seen what impact it will have.

If you have any concerns about disclosure of documents in a case, please get in touch with us today.

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