Disclosure and non-disclosure of documents and informationRe [1993] 1 FLR 191Re [1997] 2 FLR 74Times 6 Julysub nom Commissioners for Her Majesty’s Revenue and Customs v Banerjee [2009] EWHC 1229 (Ch)
10.178This section is concerned with the disclosure or non-disclosure of documents and information. They will principally consist of evidence that the tribunal may take into account. In CPR, disclosure means telling the other parties that a document exists or has existed. This is not a term that is used in the rules of procedure under TCEA and disclosure is here used to cover both disclosure of the existence of a document and its production for use by the tribunal.
10.179The issue of the evidence that the tribunal may admit or exclude from its consideration is dealt with separately.
1At para 10.151 onwards. The issue of disclosure to the parties may have to be decided first, as the document or information may have to be received by the tribunal before its admission or exclusion can be decided.
The basic principle of disclosure to the parties
10.180The basic principle is that evidence on which the tribunal relies must be disclosed to all the parties to the proceedings. This was set out by Lord Hodson in
Official Solicitor to the Supreme Court v K.2[1965] AC 201.It is said with force … that it is contrary to natural justice that the contentions of a party in a judicial proceeding may be overruled by considerations in the judicial mind which the party has no opportunity of criticising or controverting because he or she does not know what they are; moreover, the judge may (without the inestimable benefit of critical argument) arrive at a wrong conclusion on the undisclosed material. Even worse, the undisclosed evidence may, if subjected to criticism, prove to be misconceived or based on false premises.
3[1965] AC 201 at 234.Exceptions to the basic principle
10.181There are exceptions to this basic principle.
10.182The first source of exceptions is the common law. There is a requirement that regard be had to the welfare of the child. This is exemplified by
Re B (A Minor) (Disclosure of Evidence).
4[1993] 1 FLR 191. According to Balcombe LJ, this requirement only applies ‘in any case which is directly concerned with the welfare of a child’.
5[1993] 1 FLR 191 at 203. And according to Glidewell LJ, it only operates if ‘the disclosure of the evidence would be so detrimental to the welfare of the child or children under consideration as to outweigh the normal requirements for a fair trial that all evidence must be disclosed, so that all parties can consider it and if necessary seek to rebut it’.
6[1993] 1 FLR 191 at 201. For the approach in adoption, see Re K (Adoption: Disclosure of Information) [1997] 2 FLR 74.10.183There is also a common law duty of confidentiality that may apply to documents held, for example, by a health authority about a mental patient. The fact that a document was given to a party in confidence does not of itself prevent its disclosure under this rule. Two issues arise for the tribunal. The first issue is whether the confidentiality is relevant to another ground on which disclosure may be refused. As Lord Cross explained in
Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2):
7[1974] AC 405.‘Confidentiality’ is not a separate head of privilege, but it may be a very material consideration to bear in mind when privilege is claimed on the ground of public interest. What the court has to do is to weigh on the one hand the considerations which suggest that it is in the public interest that the documents in question should be disclosed and on the other hand those which suggest that it is in the public interest that they should not be disclosed and to balance one against the other.
8[1974] AC 405 at 433–434.The second issue is whether, in the exercise of its discretion, the tribunal should direct disclosure. The fact that a document is confidential is relevant to the exercise of this discretion.
9Science Research Council v Nassé [1980] AC 1028. The impact on a party’s physical or mental health is a factor that might justify refusing to direct disclosure. This is, in principle, consistent with Article 8 of the European Convention on Human Rights.
10Gaskin v United Kingdom (1989) 12 EHRR 36.10.184The issue of confidentiality was approached rather differently by the three-judge panel of the Upper Tribunal in
Dorset Healthcare NHS Trust v MH:
11[2009] UKUT 4 (AAC) at [23].Sometimes such documents are submitted to the responsible authority holding the medical records with an express requirement that they be kept confidential from the patient (and sometimes also from even the patient’s solicitors). In any event, that authority often considers, rightly, that it owes a duty of confidence to the relevant third-parties and is unwilling to disclose documents to the patient (and occasionally even to the patient’s solicitors) without an order.
It is not clear whether the tribunal considered that all such records were subject to disclosure on order or only those that were not subject to an express duty.
10.185The second source of exceptions is statute.
12Al Rawi v Security Service [2010] 4 All ER 562. The major instance is section 97(3) of the Nationality, Immigration and Asylum Act 2002.
13Discussed in MT (Algeria) v Secretary of State for the Home Department [2008] QB 533.10.186The third source of exceptions is the tribunal’s rules of procedure. Apart from specific provision, tribunals under TCEA may prohibit disclosure under its power to regulate its own procedure.
14Lord Woolf in Roberts v Parole Board [2005] 2 AC 738 at [44]. At [66], Lord Woolf described this as an implied power. The tribunal may have power to direct that evidence is not disclosed as part of an express unqualified power to give directions or as a power implied as a matter of necessity in order to enable the tribunal to perform its function.
15[2005] 2 AC 738 per Lord Woolf at [56] and [65].Non-disclosure under TCEA
10.187The TCEA Sch 5 para 11(1) authorises rules that provide for information or evidence to be withheld from one of the parties or generally:
(1)Rules may make provision for the disclosure or non-disclosure of information during the course of proceedings before the First-tier Tribunal or Upper Tribunal.
(2)Rules may make provision for imposing reporting restrictions in circumstances described in Rules.
10.188The rules or procedure made under that authority apply to documents and information rather than evidence. The documents are likely to contain evidence and the information to amount to evidence. However, there may be material that is not strictly evidence, but which nonetheless falls within the rule. For example: disclosing a representative’s identity might put that person at risk of serious harm.
10.189These powers are exercised in the rules of procedure by general and specific provision. The general power distinguishes between non-disclosure to the public and non-disclosure to the parties.
Non-disclosure to the public
10.190There may be circumstances in which it would not be appropriate for evidence to be disclosed to the public. UTR r14(1) and (7) is illustrative:
(1)The Upper Tribunal may make an order prohibiting the disclosure or publication of–
(a)specified documents or information relating to the proceedings; or
(b)any matter likely to lead members of the public to identify any person whom the Upper Tribunal considers should not be identified.
(7)Unless the Upper Tribunal gives a direction to the contrary, information about mental health cases and the names of any persons concerned in such cases must not be made public.
10.191The default position is that information about mental health cases and the names of any persons concerned in them may only be disclosed if the tribunal directs.
16This is sufficient to ensure that ‘There is … no real risk that the patient’s confidence will be breached against his will in the course of proceedings in the First-tier or Upper Tribunals’: R (C) v Secretary of State for Justice [2016] 1 WLR 444 at [35]. Otherwise, all information may be disclosed unless the tribunal directs.
10.192Rule 14(1) contains broad powers to withhold disclosure. However, it only identifies the potential subject matter of the power. It says nothing of the circumstances in which the power should be exercised.
The subject matter of the power
10.193Under (a), the only condition is that the document or information must be capable of being specified.
10.194Under (b), the matter must relate to the discovery of the person’s identity. The test is likelihood. ‘Likely’ takes it meaning from its context. In the context of a jurisdictional threshold to a discretionary power, a modest threshold may be appropriate, such as ‘may well’.
17Three Rivers District Council v Governor and Company of the Bank of England (No 4) [2003] 1 WLR 210 at [32]; Black v Sumitomo Corporation [2002] 1 WLR 1562 at [72]. It is lower in the scale of probability than ‘more probable than not’ (the balance of probabilities test).
18Three Rivers District Council v Governor and Company of the Bank of England (No 4) [2003] 1 WLR 210 at [33] and Cream Holdings Ltd v Banerjee [2003] Ch 650 at [12]. It has also been equated with a ‘real possibility’ – a possibility that cannot sensibly be ignored
19Re O (Minors) (Care: Preliminary Hearing) [2004] 1 AC 523 at [16]. – and with something that could well happen.
20Boyle v SCA Packaging Ltd (2009) Times 6 July.The exercise of the power
10.195These will have to be considered in the light of the overriding objective and of the factors relevant to non-disclosure .
10.196There must be a reason why the documents, information or the person’s identity should be protected. This may be for its own sake, but usually it will be for the consequences that may follow from disclosure. Under (b), the test of likelihood relates only to the chances of identification, not to the chances that the consequences will follow. But the latter will be relevant to whether the power should be exercised.
10.197In practice, this power may be exercised by making the decision anonymous. Under r32(6) Tax Rules, this is compulsory if the tribunal publishes a report of a decision resulting from a hearing that was held, wholly or partly, in private.
Non-disclosure to a person
10.198There may be circumstances in which it would not be appropriate for evidence to be disclosed to a person. Usually, that person will be one of the parties. UTR r14(2)–(6) is illustrative:
21See also: GRC Rules r14; HESC Rules r14; IAC Rules r13; Lands Rules r15; PC Rules r17; SEC Rules r14; WPAFC Rules r14.(2)The Upper Tribunal may give a direction prohibiting the disclosure of a document or information to a person if–
(a)the Upper Tribunal is satisfied that such disclosure would be likely to cause that person or some other person serious harm; and
(b)the Upper Tribunal is satisfied, having regard to the interests of justice, that it is proportionate to give such a direction.
22A rule in the form of this paragraph does not give rise to a systematic or inherent lack of fairness. It is validly made under a general case management enabling power: R (Immigration Law Practitioners Association) v Tribunal Procedure Committee and the Lord Chancellor [2016] EWHC 218 (Admin) at [71] and [84]. (3)If a party (‘the first party’) considers that the Upper Tribunal should give a direction under paragraph (2) prohibiting the disclosure of a document or information to another party (‘the second party’), the first party must–
(a)exclude the relevant document or information from any documents that will be provided to the second party; and
(b)provide to the Upper Tribunal the excluded document or information, and the reason for its exclusion, so that the Upper Tribunal may decide whether the document or information should be disclosed to the second party or should be the subject of a direction under paragraph (2).
…
(5)If the Upper Tribunal gives a direction under paragraph (2) which prevents disclosure to a party who has appointed a representative, the Upper Tribunal may give a direction that the documents or information be disclosed to that representative if the Upper Tribunal is satisfied that–
(a)disclosure to the representative would be in the interests of the party; and
(b)the representative will act in accordance with paragraph (6).
(6)Documents or information disclosed to a representative in accordance with a direction under paragraph (5) must not be disclosed either directly or indirectly to any other person without the Upper Tribunal’s consent.
10.199These provisions require a two stage consideration.
10.200The first stage is an assessment of the likelihood of serious harm to the person affected. The chance must be higher than a mere possibility, but not necessarily as great as a probability. The meaning of ‘likely’ has been discussed above. It must be established by credible evidence, not be mere assertion.
23R (Immigration Law Practitioners Association) v Tribunal Procedure Committee and the Lord Chancellor [2016] EWHC 218 (Admin) at [15]. The harm must be significant physical or mental suffering; harm to commercial or privacy interests, distress or anxiety are not enough.
24R (Immigration Law Practitioners Association) v Tribunal Procedure Committee and the Lord Chancellor [2016] EWHC 218 (Admin) at [15].10.201The second stage is to make a judgment whether giving the direction would be proportionate, taking the interests of justice into account.
10.202If a tribunal makes an order for non-disclosure, it must also order that neither the order itself nor information about it be disclosed. Otherwise, it would be self-defeating.
10.203The tribunal must not exercise its power to make a non-disclosure order in respect of information about one party’s case, unless it is still possible for the other party to give proper instructions to a representative and to respond to that case.
25RM v St Andrew’s Hospital [2010] UKUT 119 (AAC); Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269; Tariq v Home Office [2010] ICR 1034 at [43]–[44]; Bank Mellat v Her Majesty’s Treasury [2012] QB 91 at [18] and [21]; R v R(L) [2011] 1 WLR 359.Specific powers of non-disclosure
10.204These are in addition to the general powers. Tribunals may anomymise their decisions by refraining from using the names of persons involved or they may go further and prohibit reporting that may identify some or all of those involved. The source of this latter general power lies in the tribunals’ duty under the Human Rights Act 1998 to give effect to Convention rights, usually those under Articles 8 and 10.
26In re Guardian News and Media Ltd [2010] 2 AC 697 at [28] and [30]. Some rules make specific provision for particular classes of case.
27SEC Rules r19; UTR r19, Their specific provision removes the need for an individual decision to be made in each case.
10.205The Upper Tribunal rule only applies to appeals. It does not apply on a reference by the First-tier Tribunal under its review power in TCEA s9(5)(b) or for the Upper Tribunal to use its enforcement powers under TCEA s25.
28GRC Rules r7(3); HESC Rules r7(3); IAC Rules r6(3); PC Rules r8(5); SEC Rules r7(3); Tax Rules r7(3); WPAFC Rules r7(3). The Upper Tribunal gives specific directions for the management of those references.
29Lands Rules r45; UTR r26A.Fairness and balance
10.206The decision whether or not to allow disclosure requires a balance between the right to a fair hearing and any other relevant Convention rights.
30For example: A Local Authority v A [2010] 2 FLR 1757.10.207Non-disclosure is not necessarily incompatible with fairness. As Lord Woolf said in
Roberts v Parole Board:
31[2005] 2 AC 738 at [70] and [76].An experienced judge is able to make some appropriate allowance for the fact that evidence or information is not tested as well as would normally be the case in an adversarial hearing. In addition there are usually steps which the judge can take which will minimise the scale of non-disclosure and its effect
…
There can be an infinite variety of circumstances as to the degree of information that is withheld completely or partially without any significant unfairness being caused.
10.208One possibility is that the information withheld from a party may be disclosed to the party’s representative on condition that it is not disclosed to the party
32R (Immigration Law Practitioners Association) v Tribunal Procedure Committee and the Lord Chancellor [2016] EWHC 218 (Admin) at [76]. or, if the representative does not agree, to arrange for a special advocate to be appointed.
33R (Immigration Law Practitioners Association) v Tribunal Procedure Committee and the Lord Chancellor [2016] EWHC 218 (Admin) at [86]. This is permissible under r14(5)–(6). However, this only applies to non-disclosure under r14. It does not apply to confidential information under r19.
10.209If the fairness of the hearing will be impaired, the tribunal will have to consider whether that evidence should be excluded.
34For this power, see para 10.160 onwards. If it would not be proper to exclude the evidence, fairness must give way and the tribunal must conduct the proceedings as appropriate to give effect to the direction for non-disclosure under r14(11). This rule does not apply to confidentiality under r19, but that limits the right to fairness by necessary implication.
Data protection
10.210Section 35 of the Data Protection Act 1998 provides:
Disclosures required by law or made in connection with legal proceedings etc
35 (1) Personal data are exempt from the non-disclosure provisions where the disclosure is required by or under any enactment, by any rule of law or by the order of a court.
(2)Personal data are exempt from the non-disclosure provisions where the disclosure is necessary–
(a)for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings); or
(b)for the purpose of obtaining legal advice;
or is otherwise necessary for the purposes of establishing, exercising or defending legal rights.
10.211If a tribunal directs disclosure, section 35(1) applies and the Act cannot be relied on to justify non-disclosure.
35R (Davies) v Commissioners Office [2008] 1 FLR 1651 at [11] and [14]. Ward LJ refused permission to appeal to the Court of Appeal: [2008] EWCA Civ 1031.