RC v CC – Some clarity on disclosure?

The well publicised case of Dunn v Durham CC provided some clarity on the complex subject of permitted disclosure in cases involving highly sensitive documentation, such as Social Services cases. A recent case in the Court of Protection, RC v CC, further expands upon the considerations to be borne in mind when undertaking disclosure exercises.

RC is the birth mother of CC. CC was adopted at an early age. Contact by letter box exchange had stopped some years before, and RC was seeking to re-establish that contact. RC sought disclosure of CC’s un-redacted psychology reports and witness statements from her Social Workers.

The Court reiterated comments made in Dunn v Durham CC, namely that consideration had to be given as to whether the disclosure was necessary and whether it was in the child’s best interests. However, the Court indicated that the CPR and decided cases clearly pointed to a presumption in favour of disclosure. As such it is fair to say that a refusal to disclose should be the exception and not the rule. In all cases, all possible disclosure options should be considered, before non disclosure is sanctioned.

Looking ahead, what possibilities could be considered as alternatives to full disclosure?

Perhaps offering a Claimant inspection facilities to enable them to read a copy of sensitive data but deny them the right to borrow or take copies of it? Perhaps providing a Claimant with a précis of the content of a document(s) in place of having access to the actual documents?

Could redaction have enabled disclosure? Would restricted disclosure have been a possibility, either to the Claimant’s own Solicitor or Barrister?

It is clear that the Courts prefer some disclosure to none at all. Thankfully, the Courts are mindful of the complexities in these cases often created by the inherent existence of competing interests.  In the light of this, making an application to Court to seek approval to a proposed course of action should not necessarily be feared.

Kella Bowers

About Kella Bowers

Partner in the Insurance department
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