Disclosure of information and immunity from suit

A High Court judge recently allowed an appeal against the striking out of a claim against a police force and the CPS which had claimed immunity from suit. Jon Baines explains why.

All too often, in my experience, public authorities might inadvertently disclose confidential information about one person to someone with whom that person is in dispute, or from whom that person is in danger. Typical examples are when a council discloses information about one resident to a neighbour, or when the police disclose information about a vulnerable person to their abusive partner.

This can also happen during the process of court proceedings.

There is a long-standing - and complex - common law concept of “immunity from suit”, which, in the very simplest and most general of terms, will prevent someone from being sued for something they say in court.

The judgment involves a fascinating, but headache-inducing, analysis of the different types of immunity from suit - witness immunity at court, advocate’s immunity at court, witness immunity before court, advocate’s immunity before court and legal proceedings immunity before court (which may apply to lawyers, police officers or administrative staff preparing a case for trial).

The background facts are grim: a woman fleeing from domestic violence was forced to flee from safe homes because *twice* her addresses were inadvertently disclosed (or at least indicated) to the perpetrator, against whom criminal proceedings were being brought - once by the police and once by the CPS.

The woman brought claims against both public authorities under the Human Rights Act 1998, the Data Protection Act 2018 and in misuse of private information. However, the defendants initially succeeded in striking the claims out/getting summary judgment (one part of the claim against the police was permitted to continue).

Mr Justice Ritchie upheld the appeal against the strike out/summary judgment, with rather a tour de force run through of the history and authorities on immunity (para 66 begins with the words “I start 439 years ago”).

In very short summary, he held that strike out/summary judgment had been inappropriate, because “the movement in the last 25 years in the appellate case law has been away from absolutism, towards careful consideration of whether the facts of each case actually do fit with the claimed ‘immunity’ by reference to whether the long-established justifications for the immunity apply” (at 106). In the examples here, it was at least arguable that immunity was being claimed not over evidence in the case, but “extraneous or peripheral or administrative matters”. The judge should have applied a balancing exercise to the facts to decide whether immunity applied: she had failed to do so, and had not been entitled to determine that there was no arguable claim.

Jon Baines is a Senior Data Protection Specialist (non-lawyer) at Mishcon. This post originally appeared on LinkedIn.