The name and shame blame game

By | 6th May 2010

What a few months it has been!

I am not talking about erupting volcanoes and disrupted airline schedules, the General Election (although I see from Twitter that “Doing a Rochdale” is likely to rank highly in the litany of public gaffes alongside President Ford’s “there is no Soviet domination of Eastern Europe” and Gerald Ratner’s less than flattering description of his jewellery), the Greek economic crisis (now extended to Portugal and Spain, where next?) or the debacle over swine flu, the “pandemic” which never was (the use of the word was unnecessary and silly, designed to cause fear and anxiety).

For once, I mean something more prosaic and mainstream, although as someone with an interest in e-disclosure, I have to admit that I have found it quite exciting!

There has been a staggering number of developments in the field of e-disclosure since last autumn. From a position of near invisibility on the radar screens of most lawyers, the whole area is suddenly exploding with cases, initiatives and reports.

What is interesting to the casual observer is that a number of these developments have come about as a result of some very high profile stories which almost everyone will have heard about on subjects as diverse as the Iraq war to the alleged acts and omissions of a local authority social services department. To someone with more than a passing interest in the field, they are surprising because they have all come in a rush but, nonetheless, are exciting for all that!

The season kicked off with Judge Simon Brown’s judgment in Earles v Barclays Bank, continued with Mr Justice Ramsay in Vector v Williams and culminated in Master Whitaker’s judgment in Goodale v Ministry of Justice.

To add to those, we have had the

As far as I am aware the Shoesmith judgment is not yet on Bailii but the link takes you to the Judiciary’s website where you will find:

  • Remarks by Mr Justice Foskett
  • Summary of the judgment
  • The full judgment of some 170 pages

What lessons can be drawn from all this activity? I suspect that there are many, but prominent on any list must be:

  • The Rules (CPR) apply to everyone who uses the courts in this country. They are not voluntary. They apply to all cases and not just the large cases or high profile actions.
  • Ignorance of the law has never been a good defence! Ignorance of the rules relating to e-disclosure and the cases on the subject is every bit as unacceptable. I would go so far as to say that the cases show that neither is now an option and to persist in ignorance is negligent. (I say this despite the fact that the existing Practice Direction under Part 31 has been in operation since 2005 and has largely been ignored by lawyers and the judiciary alike!)
  • If you litigate in the courts of England and Wales you MUST now consider the problem of electronic documents. You cannot ignore such data. You cannot decide for yourself that you will not disclose them to the other parties or that it is too difficult and/or expensive to do so. The watchwords are now transparency, consultation and cooperation. I remember, as a boy, my maths teacher saying to me over and over again (I was not particularly good at maths as I recall) that he did not mind if I got the answer wrong as long as he could see how I got there. He urged me to show my workings so that he could see that I had understood the process. If I reached the wrong answer but had understood the process, he was prepared to be lenient. On the other hand, if I reached the wrong answer and he could not see how I got there (or if I got the right answer and he could not see my workings) there was no mercy. After all, he reasoned, I could have just guessed and been lucky with the answer! It is just the same with e-disclosure. Consider the problem, work out a plan for dealing with it, discuss it and agree it with the other side and get a court order if you cannot agree, and the judge will understand. In the meantime keep attendance notes of what you say and do, so that you can show the court how you reached the conclusion ultimately arrived at, and you will not go far wrong.
  • Do not underestimate the requirement to produce a list of documents accompanied by a disclosure statement. Someone has to put their head on the block and must say, after considered thought, what documents exist and should be disclosed. It is not a tick box, bureaucratic exercise and is one which can and should be undertaken by lawyers in consultation with their clients and any relevant e-disclosure experts.

By way of reminder CPR Rules 31.9 (5) and (6) provide as follows:

(5) The list must include a disclosure statement.

(6) A disclosure statement is a statement made by the party disclosing the documents –

(a) setting out the extent of the search that has been made to locate documents which he is required to disclose;

(b) certifying that he understands the duty to disclose documents; and

(c) certifying that to the best of his knowledge he has carried out that duty.

With that in mind, I want to turn to the Al-Sweady case where the Court of Appeal gave judgment last October.

You may think that the arid wastes of Iraq are unlikely to be fertile territory for e-disclosure. The case arose out of an incident at a check point known as Danny Boy on 14th May 2004 when Iraqi insurgents ambushed the Argyll and Southern Highlanders. There were hotly contested allegations that some of the Iraqis were in fact tortured and killed after they had been taken prisoner by British troops. Serious questions arose under a number of the articles of the European Convention on Human Rights.

It is certainly not my intention to be flippant about the death of anyone because any death which occurs in war is regrettable but I want to consider this case a little further because of what happened in the course of bringing it to trial and what the court had to say about disclosure.

The claimants in this application for judicial review had to make a number of applications for disclosure from the MOD. The detailed position can be seen from the judgment of Lord Justice Scott Baker but a few extracts will suffice to show the serious failure of the authorities to consider properly or at all their obligations on disclosure. For example at paragraph 8, the judge said:

We shall have to return to set out some of the more disturbing aspects of the difficulties caused by the Secretary of State’s attitude to disclosure in a little detail in paragraphs 30 onwards in the hope of avoiding similar problems in future. We were also so concerned about the lamentable approach of the RMP to disclosure that we invited the Treasury Solicitor and the Provost Marshal (who is in charge of the RMP), to come to court on 15 May 2009 to assist in ensuring that proper disclosure would take place. They duly attended and we were grateful for their help, but we will return in paragraph 29 onwards to explain the subsequent problems with the disclosure, which ought to have been given, but which unfortunately was not given, by the Secretary of State.

And again at paragraph 30:

Both before and during the hearing of this judicial review application, the claimants’ solicitors were compelled to make numerous applications for disclosure of relevant documents. It was only when such applications were made that the Secretary of State actually gave some disclosure which the court was then wrongly assured was adequate. Rather than give every instance when this problem arose, we will merely focus on two important areas where we have concluded that there have been serious breaches committed by the Secretary of State’s advisers of the duty to make proper disclosure in this case. The first deals with electronic communications between the Military Facilities in Iraq and United Kingdom command centres relating both to the death of Mr Al-Sweady and also to the treatment of the detained defendants while the second relates to disclosure of material concerning the investigations carried out by the RMP, and in particular by Colonel Dudley Giles, who was the Secretary of State’s principal witness in this case on the issue of the investigation of the claims.

And again at paragraph 44:

In consequence, various inquiries were ordered and the Secretary of State was ordered to pay the costs of the claimants on an indemnity basis. It is deeply regrettable that so much public money and so much court time has been wasted as a consequence of the persistent and repeated failure by the Secretary of State to comply with his duties of disclosure. It is a matter of great surprise and deep disappointment to the court that the Secretary of State still could not be satisfied more than 18 months after this claim was brought that he could give proper disclosure in a case such as the present one with the result that he was obliged to concede defeat and to pay indemnity costs.

The indemnity costs awarded amounted to a sum in the region of £1 million against a claim for twice that submitted by the Claimants.

I am sure that this is not the first time that a court has required the attendance of someone responsible for disclosure to explain the defects found in the exercise under their control. The fact that this involved the Treasury Solicitor and the Provost Marshal in person and that the court ultimately awarded a seven figure sum in indemnity costs should prove to the doubters that the courts take this aspect of litigation extremely seriously.

The lesson is clear. Take your disclosure obligations seriously or face the consequences. Not only that, someone has to carry the can and this case makes clear that this is likely to be a public exercise.

In other words, the blame game means name and shame!

That was not the end of it however. Colonel Dudley Giles was the RMP officer with responsibility for collating the RMP disclosure and played a leading role in what was sent to the Secretary of State, who then, with the help of the Treasury Solicitor and Counsel, advised on the documents to be disclosed to the claimants.

The court referred to lamentable disclosure failures and other shortcomings displayed by Colonel Giles as a witness and concluded at paragraphs 59 and 60:

59. It is incumbent on us to record that we are all firmly of the view that he lacked the necessary objectivity, proficiency and reliability which should be the hallmarks of any witness put forward especially by a Secretary of State in judicial review proceedings or relied on by the Secretary of State to make proper disclosure.

60. Accordingly, if Colonel Giles continues to be put forward as a principal or even a significant witness in judicial review proceeding or if he is in any way responsible for disclosure, it is our view that any Court seized of those proceedings should approach his evidence with the greatest caution.

I can imagine how I would feel, as a lawyer, if my client were described in such terms and it is surely an object lesson to all those charged with disclosure obligations to take the greatest care in making disclosure in civil proceedings in our courts.

There can now be no doubt, if there ever were, that those in default will be named, will and should be shamed and that is what happens when the game turns nasty and someone has to take the blame for defective disclosure.

This was the judgment of one of the highest courts in the land and Lord Justice Scott Baker and his fellow judges, Mr Justice Silber and Mr Justice Sweeney did not pull any punches right to the end where they added at paragraph 67:

We cannot part with this case without paying tribute to the claimants’ legal advisers who although greatly outnumbered by the Secretary of State’s legal team have persisted with their requests for disclosure skilfully and with commendable determination.

Ouch! Talk about rubbing it in!

Finally, we now have the judgment of Mr Justice Foskett in the Sharon Shoesmith case. Should you be inclined to click through to the judiciary website, you will find there the remarks made by the Judge, a summary of the judgment and the full text of the judgment, which will doubtless be in Bailii shortly.

At first sight, the subject matter of a claim for judicial review of the decision by the infamous Ed Balls to sack the head of Haringey’s Children’s Services Department after the death of Peter Connelly (Baby P) at the hands of his mother, her boyfriend and the boyfriend’s brother seemed unlikely to be fertile territory for a commentary on electronic disclosure. Once again, however, huge and damaging publicity for defective disclosure resulted from an examination by the court of the efforts of the defendants to discharge their disclosure obligations and once again the person responsible was named!

The case was high profile from the outset as the public reacted with revulsion to the news of the death of Baby P and as the details became known of the involvement of Haringey’s Children’s department and subsequently the actions of the Secretary of State and OFSTED.

It deals with a number of issues not relevant to my purpose here and, although Sharon Shoesmith failed in her application she may yet appeal and in any event she has stated she intends to pursue her claims in the Employment Tribunal for unfair dismissal and sexual discrimination.

I have not yet had occasion to examine the judgement in detail but I want to mention what the judge described as the “inept” handling by OFSTED of its obligation of candour and the instruction to delete emails. The judge was profoundly concerned with these issues and he has indicated that a number of issues remain outstanding which he intends to raise with the Treasury Solicitor personally. (See appendix 2 paragraph 41 of the judgment).

The judge also had reason to consider an internal document issued by the Treasury Solicitor in January 2010 as a direct result of the judgment in Al-Sweady and entitled Guidance on Discharging the Duty of Candour and Disclosure in Judicial Review Proceedings. See appendix 2 at paragraphs 6 and 7.

It will be interesting to see what comes out of the session between the judge and the Treasury Solicitor but in any event the courts have laid down another marker on the issue of disclosure and the duty of candour which litigants ignore at their peril.