CL-2023-000230 - [2025] EWHC 2608 (Comm)

The evidence served on Rana’s behalf refers to rights under Articles 2, 3, and 8 of the Convention. Although I understand why the brothers objected to the way those issues had been raised, I prefer to address them on their merits.

In oral submissions, Rana did not pursue any submission under Articles 2 and 3. Neither of those articles involves any “balancing exercise”, in the sense that neither is a qualified right. However each requires, in circumstances such as this, an evaluative assessment based on objective evidence. The UK’s positive duty under Articles 2 and 3 is engaged only if the step that the court is considering making or refusing to make entails a “real and immediate” threat (Re Officer L [2007] 1 WLR 2135 at [29]). In that regard a real threat is one which is “substantial or significant” and the “threshold is high” (Re Officer L at [20]). In terms of immediacy, the focus should be on “a risk which is present at the time of the alleged breach of duty and not a risk that will arise at some time in the future”: Rabone v Pennine Care NHS Trust [2012] 2 AC 72 at [38]–[39] (Lord Dyson). Rana accepts that the evidence does not objectively establish a risk of that sort. I agree. We can put Article 2 and 3 aside.

Rana also relies on Article 8. That raises different questions, because the right under Article 8 to “respect for … private and family life, … home and correspondence” is not unqualified, but subject to interference where it is “in accordance with law and … necessary in a democratic society … for the protection of the rights and freedoms of others”. Disclosure orders, which routinely encroach on an individual’s right to privacy, are “in accordance with law”, and where the court determines that documents are relevant, it must engage in a balancing exercise having regard to the weight of the rights asserted, including the fair trial rights of the party to whom disclosure is to be given.

This was discussed by the Court of Appeal in Durham County Council v D [2012] EWCA Civ 1654, [2013] 1 WLR 2305 at [23] (Maurice Kay LJ). He set out the following principles:

“First, obligations in relation to disclosure arise only where the relevance test is satisfied. Relevance can include ‘train of enquiry’ documents which are not merely fishing expeditions. This is a matter of fact, degree and proportionality. Secondly, if the relevance test is satisfied, it is for the party or person in possession of a document or who would be adversely affected by its disclosure to assert exemption from disclosure or inspection. Thirdly, any ensuing dispute falls to be determined ultimately by a balancing exercise, having regard to the fair trial rights of the party seeking disclosure or inspection and the privacy or confidentiality rights of the other party and any person whose rights may require protection. It will generally involve a consideration of competing Convention rights. Fourthly, the denial of disclosure or inspection is limited to circumstances where such denial is strictly necessary. Fifthly, in some cases the balance may need to be struck by a limited or restricted order which respects a protected interest by such things as redaction, confidentiality rings, anonymity in the proceedings or other such order. Again the limitation or restriction must satisfy the test of strict necessity.”

I should address one point in this respect, though it is I think a cul de sac. Lama submits that confidentiality does not justify withholding disclosure under para 14 of PD 57AD, because that paragraph concerns only rights and duties. I think that is too sweeping. Paragraph 14 applies when there is either a “right” or a “duty” to withhold disclosure. In appropriate circumstances, confidentiality may be either. In this case, Rana does assert a “right” to withhold disclosure, because she contends that Article 8 applies. She also points out that the common law recognises that an individual has rights in private information, and that equity may recognise confidentiality rights too. All these are, I accept, “rights” within the scope of para 14. In other words, it is not necessary for a person who invokes para 14 (or CPR 31.19) to establish a specific right to withhold disclosure. It is sufficient to establish that the law recognises confidentiality rights over the relevant documents—a legally recognised entitlement to maintain (against third parties) the documents’ confidentiality. Where rights in that sense exist, the court may be asked to consider whether the need to resolve civil litigation justifies overriding that privilege.

In Durham County Council v D, Maurice Kay LJ referred to a test of “strict necessity” as the foundation of the balancing test. This should not be misunderstood, particularly in a case where the court is considering what order to make in respect of a DRD. Once the court has decided that disclosure of a particular category of documents is prima facie necessary in order for the party seeking disclosure to fairly try the case, it is obvious that only a strict test will enable the court to decide that those rights are outweighed by some else’s privacy rights. But, as Maurice Kay LJ points out, that always remains a “balancing exercise”, because what is “strictly necessary” will inevitably depend both on the strength of the privacy rights engaged, and on the risk of unfairness if the documents are not disclosed. Although the matter should be considered systematically, therefore, relevance and the necessity for non-disclosure cannot be considered in isolation.

I would not normally consider [redacted] to raise weighty privacy interests for the purposes of Article 8. On the contrary, these are (in most cases, though the circumstances will always matter; I make no comment on the particular circumstances here, but on the general position) matters of more or less public record, quite unlike sensitive medical, financial, or family matters. In so far as Ms Bischof asserts that these are “inherently” confidential, I do not think she makes a weighty point: so they are, but not to any great extent. Moreover, in circumstances where Rana positively relies on some aspects of [redacted], it might well be said that less privacy can and should attach to the whole picture.

Rana, however, submits that the evidence shows that [redacted]. She asserts that if documents which might show that she has [redacted], thereby harming her interests.

That gives her a subjective concern that if she has [redacted]—something, of course, that she does not admit or assert, but which she accepts the [disputed] documents might show—[redacted] which would at least distress her. She stresses that subjective fears, whether or not they have objective force, may be sufficient for these purposes, since Article 8 aims to protect an individual’s subjective sense of identity and security.

I accept that subjective concerns may be sufficient to invoke Article 8. A person may have an interest in privacy without being able to show that any specific harm, beyond the revelation of private information itself, will follow from disclosure. That is part of the core of Article 8. But when the court is being asked to sanction non-disclosure, it must be relevant to consider the extent to which subjective fears are objectively justified. In this respect, the evidence is thin. There is no evidence that any particular consequences follow when [redacted].

[Redacted text.]

I therefore consider that the disclosure of [disputed] documents would involve only a relatively slight encroachment on Rana’s privacy rights. [Redacted] does not ipso facto engage inherently strong privacy interests; it is already in issue in the case in a variety of ways; and her subjective concerns (though understandable in human terms, given the history she recounts, and relevant) are not supported by objective reasons of any real cogency.