AA v Southwark – local authority’s non-disclosure rounds off an appalling story

Most of the judgment in AA v London Borough of Southwark is about the appalling conduct of a local authority towards one of its tenants. That alone would not warrant a place in this blog, but there were procedural issues which matter for those in charge of disclosure in civil proceedings. Disclosure is a continuing obligation, and you don’t suppress material just because it is unhelpful (or in this case “damning” and “detrimental”). Phone records may also be caught by the broad definition of a disclosable document.

I am, as you may have gathered, no great enthusiast for local authorities and the people who run them. It is not merely that they are, by and large (there are of course exceptions) run by overpaid, stupid people performing their tasks badly and pissing public money up against the wall, but that the mantle of petty authority which falls on these generally inadequate pen-pushers turns them into tyrants. Little people with clipboards instead of brains somehow think that they are immune from general rules of decency and politeness, quite apart from the law or anything else.

It may be an extreme case, but the judgment in AA v The London Borough of Southwark demonstrates what I mean. As well as the judgment (or perhaps instead once you get past the opening paragraphs) have a look at Gordon Exall’s usual succinct summary with the title Lies, evidence, disclosure and procedure. When you have recovered from being appalled at the way Southwark’s housing officers behaved towards its refugee tenant, have a look at the procedural points which are relevant to disclosure in any civil claim. It is, as Gordon Exall says, “as excoriating a judgment as you are likely to read in relation to disclosure and witness evidence”.

The first point relates to a failure to disclose a report which was highly material to AA’s claims – it did not emerge until Southwark was ordered to disclose it on the second day of trial, even though they had had it for months by then. The judge said (paragraph 238) that he was:

“driven to the conclusion that the report was withheld because its contents were so damning of and detrimental to of LBS’s defences”.

The other point relevant to those responsible for disclosure appears in paragraph 165 of the judgment and concerns mobile phone records. The judge said:

These records and the obviously erroneous evidence about their phone calls given by the four principle witnesses enable a clear picture to be built up about the significant level of collusion and collaboration there was between them”.

There is also a point about witness statements which were “short and anodyne” and “produced in very similar terms that gave similar but inaccurate accounts of the eviction”. It was apparently evident that they were “produced on the same computer and printer and were drafted in unison”.

The usual response from any public authority, from the government down to local authorities, is that “lessons will be learned”. That kind of answer will barely suffice for a company whose defaults become enshrined in the law reports.

There is more here than mere failure to read the rules. This case involved deliberate suppression of evidence. If you look for justification for the expense of disclosure as the common law requires, you find it here. As the Gordon Exall says:

It damages, immensely, confidence in the local authority system. It reinforces, enormously, confidence in the judicial system in that this judgment was obtained by a litigant in person in a case where the defendant had elected to instruct Leading Counsel. The lessons in relation to the need to treat people decently and honestly are obvious and will, no doubt, be dealt with at length elsewhere. So far as procedure is concerned there are clear lessons in relation to:

    The need to give full and frank disclosure.
    The need for honesty in witness evidence.

By the way, it is good to see an outing for that wonderful expression “on a frolic of their own” which comes up when the vicarious liability of employers is discussed. One concludes from this judgment that the behaviour was systemic – not a frolic by bad people but just the way Southwark behaves, even towards a court and its authority. This is topical – the Regulation of Investigatory Powers Act 2000 gives snooping powers not just to anti-terror organisations and the police but to people right down at the bottom of the barrel of public authority. Even where judicial approval is required, this case suggests that one authority, at least, feels that its objectives outweigh its duty of candour to the court.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure. Bookmark the permalink.

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