keeping it local - Hill Dickinson

keeping it local winter 2013
not applicable to disclosure in civil
proceedings. The decision therefore
highlights an important distinction
between disclosure of documents
during litigation, to which the CPR
applies, and data protection.
When deciding whether documents
should be disclosed, an assessment
must be made as to whether the
documents are relevant and would form
part of standard disclosure in the civil
claim. If the documents are relevant,
then information can only be withheld
if it is necessary to prevent a third party
from being adversely affected by its
disclosure. It is then for the court to
conduct a balancing exercise between a
party’s right to a fair trial (under Article
6 of the European Convention on
Human Rights) and a non-party’s right
to privacy and confidentiality. If a local
authority does wish to assert a right to
withhold documents or redact them
prior to disclosure, it will have to show
that doing so was “strictly necessary”.
Good news for local
authorities?
The threshold set by the Court of
Appeal for withholding disclosure
appears high. It seems that courts will
be slow to support the redaction of
information relating to third parties in
most cases. In this case the Court of
Appeal allowed the relevant records to
be disclosed without being redacted.
Accordingly the Court of Appeal’s
decision should to some extent remove
the concerns of local authorities as to
their obligations under the DPA. This is
no longer a relevant factor. As long as
local authorities can demonstrate that
they have considered the relevance
of the documents and the balance
between providing and withholding
disclosure, then there should be no
criticism, particularly in circumstances
where documents have been provided
without being redacted.
The Court of Appeal also referred to
the possibility of safeguarding third
parties’ rights further, even when their
respective names had been disclosed,
by obtaining orders or undertakings
that the identities of non-parties are not
disclosed beyond the parties, and their
legal advisors, and that the information
be used solely for the purpose of
those proceedings. This is not strictly
required as CPR 31.22 already achieves
this outcome and again demonstrates
the capability of the CPR in dealing
effectively with disclosure issues.
Ian Carroll
ian.carroll@hilldickinson.com
Newsflash : Health & Safety
Executive consultation
The Health & Safety Executive
(HSE) is consulting for views on its
new draft code: the National Local
Authority Enforcement Code. The
draft code has been produced
in response to one of Professor
Lofstedt’s recommendations that
the HSE be ‘given a stronger role in
directing local authority health and
safety inspection activity to ensure
local authority regulators take a
more consistent and proportionate
approach to enforcement.’ The
consultation is open for comment
until 1 March 2013 and can be
viewed at http://www.hse.gov.uk/
consult/condocs/cd247.htm.
The draft code mandates a risk
based approach by local authority
health and safety regulators,
ensuring that local authorities make
the best use of their regulatory
resource by targeting it where
it is most needed. It promotes
proactive inspection by local
authorities based on a list of high
risk sectors published by the HSE.
Local authorities will be expected
to develop local intervention plans
based on their own local knowledge.
If you would like any more
information about this, or related
issues, please contact Stephen
Barnfield, associate in our regulatory
services team.
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