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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Morley v Nottinghamshire Healthcare NHS Trust & Anor [2002] EWCA Civ 1667 (28 October 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1667.html Cite as: [2002] EWCA Civ 1667

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR DISCLOSURE

		Royal Courts of Justice Strand London, WC2 Monday, 28 October 2002

1. LORD JUSTICE SCOTT BAKER: The claimant is a tariff expired discretionary life sentence prisoner. He was transferred from prison to Rampton Hospital under Sections 47 and 49 of the Mental Health Act 1983 and subsequently back to prison under Section 50 of the same Act. The decision to transfer him back was that of the Secretary of State. However in accordance with the section the matter has, first, to be referred to him by the Responsible Medical Officer at the hospital. The claimant sought judicial review of the decision to move him back from hospital to prison, and joined the health authority and the Secretary of State as effective defendants. The governor of the prison was a third defendant but he is irrelevant for present purposes. Mr Justice Burton refused the claim for judicial review on all grounds. The claimant sought permission to appeal which was granted by Lord Justice Sedley but only on grounds 2, 4, 6 and 8 of those put forward. The substantive appeal is due to be heard next week.
2. The present application is for disclosure of certain documents. The first defendant is asked to disclose copies of any notes, memoranda, statements or other records of the views of two people, Mr Jones and Miss Evershed, together with any other members of the Sex Offender Treatment Programme Team who were concerned with Mr Morley's participation in that programme. If such records do not exist then the claim goes further and seeks an order directing that statements be provided by Mr Jones, Miss Evershed and other members of the team on the issue of the claimant's treatability and return to prison and their views on those topics.
3. Secondly, the claimant seeks disclosure of all the medical records held by the health authority in relation to the claimant covering the period of his detention at Rampton. The position as regards the second limb of the claim - the medical records - has been simplified because the health authority accepts that they can be provided although they do not accept they are obliged in law to provide them, and they will be provided in the immediate future. It may be that those medical records do include some of the documents that are being sought under the first limb of the order.
4. The present application for disclosure, it seems to me, is the forerunner of a further claim, if disclosure reveals anything of interest to the claimant, for permission to adduce further evidence on the appeal.
5. It is necessary to say a brief word about the relevance of Mr Jones and Miss Evershed. They were, as is probably apparent from what I have already said, involved with the claimant's sex offender treatment programme. Although the claimant appeared to have been doing satisfactorily at Rampton for some time and a Mental Health Review Tribunal accepted that at the end of last year the treatment he was undergoing appeared to be of benefit to him, matters went sharply downhill thereafter with the eventual consequence that the RMO took the view that he could not properly be treated any more at Rampton and that the time had come for him to return to prison. It appears at paragraph 25 of the judgment that Mr Jones and Miss Evershed's view was that the claimant should only continue to receive treatment at Rampton if members of the wider clinical team felt confident that they could address his interpersonal difficulties and therapy interfering behaviours in an effective manner. The wider clinical team did not feel so confident and the RMO expressed his view to the Secretary of State.
6. What Mr Bowen, who has appeared on behalf of the claimant, is seeking to establish is that by probing Mr Jones' and Miss Evershed's views - in the first instance through any documents and if there are not any then by requiring them to provide statements - it will be possible to establish that there was a strong view against returning the claimant to prison and that that view ought fairly to have been put to the Secretary of State by the RMO.
7. In my judgment, the present application has many of the hallmarks of a fishing expedition because it seems to me that the views of Mr Jones and Miss Evershed were, in broad terms, pretty clear as is illustrated in the passage from the judgment I have read. However of more significance than that is the fact that this, in my judgment, is an application that is made far too late. It is true that the claimant sought permission to amend the claim before Mr Justice Burton and was refused and that Mr Justice Burton said that if permission was granted then a good deal of further evidence would be required, which would necessitate an adjournment (something for which the claimant had not applied). But it seems to me in the first instance an application of this kind ought to have been made to the trial judge. There is therefore, as has been pointed out by Mr Kovats for the health authority, a serious Ladd v Marshall problem for the claimant in the event that he seeks to deduce further evidence. Even leaving aside the fact that this was not an application made to the trial judge, there has been ample time for the application to be made to this court well before now. Mr Bowen's response is that his instructing solicitors were in frequent correspondence with the health authority's solicitors and they did not say that the information could not be supplied. They gave evasive and unhelpful answers.
8. In my judgment, any experienced solicitor in these circumstances ought to have launched an application and conducted any further correspondence against the backdrop of a return date. It is wholly inappropriate to leave an application of this kind until very close to the date of the appeal hearing. It seems to me that if the claimant's appeal succeeds on the amendment point, that is the stage at which to look to see whether any further evidence might, in all the circumstances, be appropriate and that might well include not just evidence from Mr Jones and Miss Evershed but others.
9. I have the gravest doubts as to whether it is appropriate for the court to explore in depth the minutiae that go behind the actual decision making of the RMO, but that is not a matter I have to consider today. I note that the medical records are being supplied in any event, and I accept the submission of Mr Kovats that it would be wholly inappropriate to require witness statements from Mr Jones and Miss Evershed.
10. In my judgment, this is a misconceived application which, in the circumstances, must be refused.
Order: Application refused