Al-Sweady v Secretary of State for Defence: blame for e-Disclosure failures gets personal – and public

The Court of Appeal has castigated a Minister, the Treasury Solicitor, and a serving army officer by name, for disclosure failures in a judicial review application derived from the Iraq war. You do not need such an elevated cast of players nor so important a subject for such a public humiliation to be visited on you.

I suggested in one of my turn-of-the-year predictions that 2010 would see individuals, both from clients and from their lawyers, being named personally in judgments about failures to give disclosure properly. I had in mind the judgment in Earles v Barclays Bank Plc, and suggested that those charged with disclosure might care to consider the possibility not only that their firm’s name might appear in the same paragraph as the word “incompetent” but that they might have a walk-on part of their own. We have yet to see the judgment in Shoesmith v Ofsted & Ors, but it is reasonable to expect that some stronger word than “incompetence” will appear in relation to named individuals responsible for a disclosure exercise which not only failed to uncover seventeen very relevant drafts of a key report, but which included an instruction to delete all documents containing highly material keywords. It is unlikely, you would think, that a personal reputation could sink lower.

If you think that, take a look at the judgment in Al-Sweady & Ors, R (on the application of) v Secretary of State for the Defence [2009] EWHC 2387 (Admin) (02 October 2009) and at what is said about the principal witness on disclosure matters for the Ministry of Defence:

Accordingly, if [insert your own name here] continues to be put forward as a principal or even a significant witness in judicial review proceedings 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 would work quite hard to ensure that the name in that sentence was not mine.

Marketing political parties is like marketing anything else

No one interested in marketing could fail to appreciate a British general election. I do not disguise my own political affiliation (broadly described as “anything but Labour”) but I will both try to be even-handed in my observations on the campaigns and to stick to subjects which have some bearing on my main theme. That sweeps up not merely the art of marketing but things to do with privacy, data protection and information security. My sweeper commitment is to try and help my non-UK readers understand something of British culture to the extent that it affects those who do business here. That gives me a pretty wide range.

Let’s start with Labour, and a nice crossover between marketing and the misuse of confidential information. Last week, Labour sent 250,000 leaflets to women whose names appear to have come from an NHS database of cancer patients. They followed that up by writing to hundreds of doctors, using their work e-mail addresses only available from an NHS database, and urging them to sign a letter of protest about alleged Conservative plans for NHS cuts. The fact that the said plans bear no relation to anything announced or even hinted at by the Conservatives is neither here nor there – misrepresenting your opponent’s position is something all the parties do – but using contact information which is only available to the government, and which is confidential, is not on. Any marketing benefit was immediately wiped out by the adverse comment from all sides.