B1/2001/0981

Neutral Citation Number: [2001] EWCA Civ 1371
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXFORD COUNTY COURT
(MR RECORDER HUNGERFORD)
                                  Royal Courts of Justice
                                  Strand
                                  London WC2
 
                                  Monday, 30th July 2001
B e f o r e :

LORD JUSTICE MANCE

‑and‑

LORD JUSTICE KEENE

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ABENA SIMBA‑TOLA
Appellant

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TRUSTEES OF ELIZABETH FRY HOSTEL
GERALDINE PEARCE
Respondents

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(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AF
Telephone No: 020 7421 4040
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The Appellant appeared in person
MISS A DAY (instructed by Hewetts Solicitors, Berkshire RG1 4PS) appeared on behalf of the Respondents

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J U D G M E N T
1.	LORD JUSTICE MANCE: Lord Justice Keene will give the first judgment.
2.	LORD JUSTICE KEENE: This is an appeal against a decision of Mr Recorder Hungerford, QC, sitting at Oxford County Court on 1st March this year. The appellant was a resident at a probation and bail hostel owned and operated by the first repondents, and of which the second respondent was the warden/manager at the relevant time.
3.	The appellant resided there from 26th May 1994 to 8th July 1994. She is a black woman of African origin. She brought a claim under the Race Relations Act 1976 alleging that while at the hostel she had suffered racial discrimination from members of staff and other residents. The particulars of claim refer to racial abuse and threats by some seven of the other residents on nine occasions. The allegations against the staff consist mainly of complaints that they failed to act to prevent the abuse by other residents. There are also allegations that they victimised her in various ways.
4.	In their defence the first repondents say either that no member of staff was present during the alleged incidents of abuse by other residents, or that staff warned the resident concerned and took appropriate action. Racial discrimination is denied. It is also indicated that at times the appellant allegedly behaved in an aggressive way. The second respondent's defence is along similar lines.
5.	There was an order by District Judge Payne on 20th December 2000 that witness statements be filed by 17th January 2001 and that any party which did not comply be barred from calling evidence at trial without the leave of the trial judge.
6.	The appellant appealed against that order to the county court judge on the basis that in order to comply she needed full and proper disclosure of the case histories of certain residents and other relevant material. Miss Simba‑Tola also made an application for disclosure of those documents for the period of her residence and for a reasonable amount of such documents for the period before and after she had resided at the hostel in respect of the same residents.
7.	The first respondents disclosed the log book of the hostel both for the six weeks of the appellant's residence there, and also for three months either side of that period. A notebook and a message book was also disclosed. But the appellant also sought the personal files of certain residents, those being files maintained by the respondents.
8.	Under the National Standards for such hostels issued by the Home Office, hostel staff are required to record certain information about each resident in addition to certain basic personal details, including ethnicity. That information is to comprise the following:
“Sentencing court, and charge or conviction resulting in the residence requirement;
any bail order or licence conditions;
any future court dates and reports required;
any supervising probation officer;
any religious or cultural considerations;
any prescribed medication, medical conditions, diet; and
the paying authority
Staff must subsequently record any changes to those items plus any significant events, including violent or racist incidents and failure to comply with the rules, in the resident's records.” 
9.	A letter from the National Probation Directorate of the Home Office dated 28th February 2001 states that:
“Clearly these records are confidential, and we would not wish them to be disclosed to third parties unless there was a good reason for doing so.” 
10.	Before the learned recorder Miss Simba‑Tola indicated that whilst some of the categories of information listed for personal files would not really be relevant she was particularly anxious to have the information included under the last item which refers to “significant events, including violent and racist incidents.”
11.	The recorder observed that the hostel log book already recounts the day‑to‑day occurrences in the hostel, including individual incidents involving particular persons. He came to the view that the personal files of residents would not contain any additional material of relevance. He seems to have based that judgment in part on what was in the log book, but also by looking at the appellant's own personal file which was provided to him. Having gone through that file he said in his judgment:
“... it appears to me that the incidents and matters recorded there are either the sort of incidents which are set out in a log book or of a confidential nature which will be deleterious to the public interest to disclose to anyone else...
... in this case it seems to me that the relevance of the material is highly questionable, and duplicated already sufficiently by the message book, log book and note book already disclosed, and, furthermore, these matters are highly confidential, on people who in most cases are undergoing or have undergone difficult times in theirs lives...” 
12.	He therefore refused the application for disclosure.
13.	It is against that decision that Miss Simba‑Tola appeals. The essence of her case is that in order to determine whether the documents were relevant and ought to be disclosed, because it was necessary to dispose fairly of the proceedings, the judge below should have looked at the documents in question, that is to say the personal files and any other material which were being sought. If that required an adjournment for them to be produced he should have adjourned the hearing before him.
14.	Reliance is placed on the decision of the House of Lords in Science Research Council v Nasse [1980] AC 1028, where their Lordships were dealing with the issue of discovery in discrimination proceedings. In the course of his judgment Lord Wilberforce set out a number of propositions. It is only necessary for present purposes to refer to the fourth and fifth of them which are ones upon which Miss Simba‑Tola relies in her grounds of appeal. I quote from page 1066:
“4. The ultimate test in discrimination (as in other) proceedings is whether discovery is necessary for disposing fairly of the proceedings. If it is, then discovery must be ordered notwithstanding confidentiality. But where the court is impressed with the need to preserve confidentiality in a particular case, it will consider carefully whether the necessary information has been or can be obtained by other means, not involving a breach of confidence.
5. In order to reach a conclusion whether discovery is necessary notwithstanding confidentiality the tribunal should inspect the documents. It will naturally consider whether justice can be done by special measures such as 'covering up' substituting anonymous references for specific names, or, in rare cases, hearing in camera.” 
15.	Miss Simba‑Tola, who has appeared in person this afternoon, argues that it is crucial in discrimination cases to do a comparative exercise, and therefore she needs access to the documents in question. In particular, she emphasises the importance to her case of the personal files of the other residents. She refers to a number of specific incidents such as one which she says took place on 13th June 1994 when one of the other residents, Yvonne Jones, threatened her with a knife, calling her a grass. That, Miss Simba‑Tola emphasises, is not recorded in the log book. On the other hand she accepts that it is not recorded in her own personal file but she contends that it might be in Yvonne Jones' file. In addition she submits that she needs to know what formal written warnings were received by Yvonne Jones.
16.	Miss Simba‑Tola has made reference to other specific incidents. She also says that she wants to know the ethnicity of all those mentioned in the logbook. She concedes that there is nothing in her personal file by way of a racist or violent incident which has not been recorded also in the logbook which has already been disclosed. She makes reference to another incident on 16th June 1994 which, to my mind, represents the high point of her case on the personal files, where there is a reference in her own personal file to her threatening Yvonne Jones and saying that she (that is Miss Simba‑Tola) has been racially harassed by her. That is a matter which appears in the appellant's personal file but does not appear in the logbook. It has of course to be observed that the personal file is not there recording any observation by a member of staff or anyone else of racial harassment of the appellant, but simply recording the appellant's own complaint to that effect.
17.	In addition to seeking disclosure of the personal files Miss Simba‑Tola also wishes to have disclosure of various other documents. Those seem to be in general documents which may or may not exist. For example, it is submitted that there are no minutes of staff meetings disclosed by the respondents; there are no reports disclosed by other members of staff such as teachers or cleaners, which might refer to racist or violent incidents of the kind relied upon by the appellant; and no incident book has been disclosed. As I have indicated the appellant is not in any position to assert positively that any of these categories of documents actually exist. Nonetheless it is said all of these are necessary for the fair disposal of her claim.
18.	On behalf of the respondents Miss Day contends that it is unnecessary to disclose the personal files or the other documents. It is contended that one can compare the log book with the personal file of the appellant to get a good idea of whether or not any additional material is likely to be found in any personal file at all. It is said that the personal files add nothing of relevance. Indeed, Miss Day has told us that she personally has looked through the personal files of all those referred to in the pleadings, except that of Yvonne Jones which cannot be found. While there may be incidents, she says, of a racist or violent nature not involving the appellant there are no additional ones which she has found involving the appellant which are not already recorded in the log book or message book. So far as the exception of Yvonne Jones' file is concerned, that cannot be found because it seems to have disappeared when there was flood damage caused at the hostel.
19.	An undertaking is offered on behalf of the first respondents to file a witness statement within 14 days from Mr Peter Holland, the treasurer of the hostel, to verify which files still exist and which other documents exist, to explain the loss of Yvonne Jones' file, to read the personal files himself and to confirm that there is no additional reference to any racist or violent incident involving the appellant referred to in those personal files beyond the matters already referred to in the log book or message book disclosed.
20.	Finally, in respect of the other documents sought, Miss Day tells us that there is no incident book, and she is not aware that any of the others sought such as staff reports or minutes of staff meetings now exist, even if at any time they had existed. But her principal submission in relation to those is that there is no reason to believe that they would add anything to what is already contained within the log book.
21.	There are, in reality, it seems to me, two issues which fall to be determined on this appeal. The first is whether the learned recorder dealt properly with the issue of specific disclosure and inspection assuming that no question of Public Interest Immunity arose. The second, which only arises if the answer to the first question is that he failed to deal properly with that issue, is whether the documents in question are protected by PII and whether that issue was approached in the right way. That is a contention which was advanced below and has been advanced briefly here on behalf of the respondents.
22.	The decision in Nasse remains the leading authority in this area of law where the court is dealing with documents which are said to be confidential but not protected by Public Interest Immunity. It does, however, have to be borne in mind that the procedural rules relating to disclosure and inspection have changed since Nasse was decided. The rules now applicable, the Civil Procedure Rules, reflect the Access to Justice Report which sought to reduce the scale of discovery of documents from that which had been occurring until then. The current approach is for the court to determine whether disclosure and inspection needs to be ordered in the light of the overriding objective set out in Part 1(1) of the Civil Procedure Rules (see practice direction 31.5(4)). That overriding objective is to deal with cases justly, but that includes, so far as is practicable, saving expense and dealing with the case in ways which are proportionate to the issues and to what is at stake. Proportionality is an important principle in the area of disclosure as one can readily see from the expressed reference to it in Part 31.3(2). In accordance with that principle, the court, in exercising its discretion under Part 31 may properly take into account the fact that the document sought would provide no additional information or no significant amount of additional information beyond that already available to the other party and to the court. It would not be proportionate to order the disclosure and inspection of documents which, in so far as they are relevant at all, very largely duplicate what is already available.
23.	In the present case the only part of the personal files sought which would be likely to be relevant to the issues in the proceedings would be the record of racist or violent incidents, including the action, if any, taken by staff in respect of them. But, as I have indicated, it is said on behalf of the repondents that no such incident would be recorded in the personal files which is not also recorded in the log book or message book already made available. That is an assertion not so far backed by any witness statement or affidavit. However, the recorder was able to check it, and did check it, by inspecting the personal file of the appellant. As a result of that he concluded that the first repondents' assertion was soundly based and that no new material would be revealed by the order sought.
24.	Is it fatal to that exercise of discretion that he did not inspect the personal files of the other residents? For my part I do not think that it was. These proceedings relate to alleged incidents involving the appellant and one or more of the other residents. Consequently, any such incident, if it occurred, would be very likely to be recorded in the appellant's own personal file, as indeed is expressly required by the Home Office Guidance, and in the hostel log book.
25.	This case is not concerned to any substantial degree with incidents where the appellant was not involved. Therefore the recorder, by inspecting the appellant's personal file and the log book, was putting himself in a proper position to assess whether any new material relevant to this case would be likely to be forthcoming from the personal files of the other residents.
26.	The conclusion which he reached is now confirmed by the appellant's concession to this court that there is nothing in her personal file which adds to the log book, and it is also confirmed by the undertaking by Miss Day to file evidence about the other personal files of other residents, the undertaking which confirms the assurance that she herself has been able to give as a result of her personal inspection of the files in question. Moreover, so far as formal written warnings are concerned, a matter upon which some particular stress has been laid by Miss Simba‑Tola, our own inspection of the logbooks has revealed that formal written warnings are indeed recorded there as well, no doubt, as in the personal files.
27.	The conclusion which was arrived at by the learned recorder, and the conclusion which I would reach as a result of the analysis already conducted, does not conflict with the decision in Nasse because that case was concerned with the balancing exercise which may be required where disclosure is sought of confidential documents. If there was additional relevant information contained in the personal files, then such an exercise would be required; but that is the second stage. I do not read the judgment below as finding that there was such additional relevant information likely to be in those files. The confidentiality of the information appears to have been an additional reason for the recorder's decision. It is enough for present purposes that the personal files sought would be unlikely to add to the information already available. That was a conclusion open to the recorder given the exercise he conducted, but it is one which, as I have indicated, is very much bolstered by the undertaking given to this court and to which I shall return at the end of this judgment. So far as the other documents sought are concerned I can see no reason to believe that, even if they exist, they would add anything relevant which would not also already be available through the mechanism of the log book.
28.	It is therefore unnecessary to decide the second issue, which is the issue concerning Public Interest Immunity. I would only say that I would not regard the claim of Public Interest Immunity as necessarily protecting all of the content of these personal files. On the authorities some of those contents may need such immunity to ensure the proper working of the system of bail and probation hostels; but there is no obvious reason why such immunity should attach to the final item in the list of contents in the Home Office Guidance; that is to say the record of violent or racist incidents observed at the hostel on the part of any resident. In any event, in so far as any claim of PII was prima facie sound, the judge would in that instance be required to inspect the documents in question to assess whether the interests of justice which is part of the public interest outweighed or not the claimed to public interest in non‑disclosure. He did not do that. However, in the event, that is of no consequence in the present case. It is enough that his decision to refuse the order sought was properly based on the absence of any need to require disclosure and inspection of the documents in question.
29.	The undertaking given on behalf of the respondents is one to which some weight is properly to be attached. If it is found that the confirmation referred to in the undertaking once the personal files have been inspected by Mr Holland cannot in the event be given, then those parts of the personal files which provide materially additional and new information on racist or violent incidents involving the appellant must be disclosed, subject to any application to the county court judge on the basis that the relevance of the material in question is outweighed by its confidentiality. I say that because I cannot see that confidentiality of any kind must automatically attach simply to information in the personal file because of its presence in that file. That, in particular, does not seem to me to operate automatically in relation to the sort of information to which I have just been referring. That undertaking, therefore, is of some importance.
30.	For the reasons given in this judgment I, for my part, would dismiss this appeal.
31.	 LORD JUSTICE MANCE: I agree with all that Keene LJ has said, and I would only add a very few words of my own. As Keene LJ has pointed out, Science Research Council v Nasse [1980] AC 1028 goes to a situation where it is said that material otherwise relevant and disclosable should not be disclosed, because its relevance is outweighed by its confidentiality.
32.	The first question is to consider whether there is otherwise relevant material, irrespective of confidentiality. In that regard two particular distinguishing features highlight the difference between this case and Nasse. Nasse was a case where the issue was one of promotion, and a direct comparison between the position of the claimant and other officers therefore arose, which might be illuminated by the relevant annual confidential reports prepared in respect of all officers. That is quite different, it seems to me, from the present case where the issue is whether the claimant was treated in a way in which someone other than a black person would not have been treated; in other words whether she was racially discriminated against. There is no direct comparator in respect of any incident except insofar as the same incidents in which the claiment was involved might have led to disciplinary steps in respect of others participating in them.
33.	Secondly, there is in the present case a general log kept by the hostel under the relevant regulations, and required to contain information about incidents such as those about which the claimant complains. There is, furthermore, her own personal file which has been disclosed. There were no equivalents in Nasse.
34.	The general principles governing disclosure are not in doubt. We have had put before us the standard disclosure list, and the onus shifts under the rules to the claimant (the appellant before us) to demonstrate that some further specific disclosure should be made. Her application is therefore one, which she must make good on the material before the court, furthermore, under practice direction 31.5.4 where it is specifically provided:
“In deciding whether or not to make an order for specific disclosure the court will take into account all the circumstances in the case in particular the overriding objective described in Part 1.” 
35.	That picks up what my Lord has mentioned in relation to Rule 31.3(2). The practice direction goes on to say that, if the court concludes that the party from whom specific disclosure is sought has failed adequately to comply with the obligation imposed by an order for disclosure, whether by failing to make such a sufficient search for documents or otherwise, the court will usually make order as is necessary to ensure that those obligations are properly complied with. That of course raises an issue which it is necessary to consider, as well as proportionality.
36.	To my mind, however, it is clear for the reason my Lord has given, that the personal files of other residents of the hostel would be unlikely to add anything to the material already available even where they are still available.
37.	As to other documents it is not made good that they exist at all. I have in mind here documents such as a further incidents log or further minutes. As regards personal files, that of Yvonne Jones is apparently lost, and that needs to be dealt with as indicated by a witness statement. As regards others we have, as my Lord has recounted, counsel's confirmation of the position fortified by the undertaking which she has read and which I, for my part, would also accept.
38.	If there is any relevant material which emerges from Mr Holland's further consideration of the documents, then any issue regarding confidentiality should be dealt with as my Lord has indicated, by the circuit judge; by relevant material I, like my Lord, mean material directly relevant to incidents involving this appellant of a racist or violent nature. I do not accept the submission that the hostel must, in effect, disclose all documents regarding all incidents of whatever nature involving any resident, or involving Yvonne Jones, or the hostel's reaction to them, even if unrelated to the appellant.
(Appeal dismissed with costs; 75 per cent of cost of the appeal to be paid by the appellant).