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1 IN THE HIGH COURT OF JUSTICE QUEEN S BENCH DIVISION CARDIFF DISTRICT REGISTRY Claim No 6CF90111 CARDIFF CIVIL JUSTICE CENTRE, BEFORE: HIS HONOUR JUDGE HICKINBOTTOM SITTING AS AN ADDITIONAL JUDGE OF THE HIGH COURT ANDREW EZSIAS -and- 2 PARK STREET, CARDIFF CF10 1ET Date: 23 November 2007 Claimant THE WELSH MINISTERS Defendants The Claimant appeared in person. ROBERT O LEARY (instructed by the Director of Legal Services, Welsh Assembly Government) appeared for the Defendants Judgment

2 Introduction 1. In this action, the Claimant Andrew Ezsias claims against the Defendants ( the National Assembly ) under Section 7(9) of the Data Protection Act 1998 ( the 1998 Act ) for failures to disclose data to him following several requests. He seeks (i) a declaration that the National Assembly have failed to comply with their obligations under the 1998 Act, (ii) damages in respect of that non-compliance, and (iii) an order requiring them to comply. Background 2. The background to the claim is as follows. From 1 July 1998, Mr Ezsias was employed by the North Glamorgan NHS Trust ( the NHS Trust ) as a consultant oral and maxillofacial surgeon. In April 2003, he was suspended: but he remained in post until 1 February 2005, when he was summarily dismissed. On 4 February 2005, he commenced proceedings in the Employment Tribunal on the primary ground that he had been dismissed because he had made protected disclosures - he was a whistleblower - and his dismissal was therefore automatically unfair under Section 103(a) of the Employment Rights Act It is his case that, during the course of his employment, he had a number of major clinical and administrative concerns. In respect of several colleagues, he alleged fraud, dereliction of duty, incompetence and inadequacy which he considered jeopardised the treatment and safety of patients. He claims that he made a number of complaints about these matters which his employer failed properly to address and in respect of which he was victimised, being suspended and ultimately dismissed. He claims that the investigator appointed by the NHS Trust improperly re-wrote and deceitfully backdated his report in order to conceal facts and facilitate the Trust s intention to breach its contract by dismissing Mr Ezsias (Mr Ezsias Skeleton Argument 3 September 2007, Paragraph 17(d)(iii)). The NHS Trust s case is that the real reason for the dismissal was that Mr Ezsias was responsible for a breakdown of relationships in his department and within the NHS Trust such that the employment relationship could not continue and it was fairly determined. 3. Those employment proceedings are still current. Although on 9 September 2005 the Employment Tribunal struck out Mr Ezsias s claim as having no real prospect of success, this ruling was overturned on appeal to the Employment Appeal Tribunal (Elias J) which was upheld by the Court of Appeal ([2007] EWCA Civ 330) on the grounds that (i) although Elias J expressly found there was no actual bias in or pre-determination by the Employment Tribunal, the tribunal s decision was vitiated by apparent bias because the chairman had expressed a view on the merits of

3 the claim at an earlier hearing (i.e. that the claim had no prospect of success and was bound to fail) that a fair minded and informed observer would have considered effectively to have been a concluded view: and (ii) there was a crucial core of disputed facts in the case that could only be determined by evaluating the evidence at a hearing, and therefore it could not be said that the claim had no reasonable prospect of success. As I understand it, the NHS Trust has not renewed its application for summary judgment, and Mr Ezsias s claim before the Employment Tribunal is therefore proceeding towards a substantive hearing. Nothing I say in this judgment bears upon the merits of that claim. 4. Mr Ezsias s employment was with the NHS Trust. However, when the Trust failed to deal with his concerns in a manner he found satisfactory, he wrote extensively to the National Assembly Government in respect of both his substantive concerns and the manner in which those concerns had been dealt with. The sheer amount of correspondence was compounded by (i) the number of people within the National Assembly to whom he wrote which included the First Minister and other Welsh Ministers, other Assembly Members (including Mrs Sue Essex AM), civil servants in a number of Welsh Assembly Government Departments (including the Department of Health & Social Services, the Information Management Division and the Complaints Unit), and other bodies that formed part of the Assembly Government (e.g. NHS Wales, Healthcare Inspectorate Wales and the Care Standards Inspectorate): and (ii) the fact that Mr Ezsias also repeatedly complained about the manner in which his complaints were being dealt by the National Assembly, in which the Public Services Ombudsman for Wales became involved. It is Mr Ezsias s contention that the National Assembly acted deliberately to hinder his employment claim and to conceal failures by Ministers and senior civil servants in the National Assembly Government (Mr Ezsias Skeleton Argument 3 September 2007, Paragraph 9(a) and (b)). The Ombudsman dismissed Mr Ezsias s complaints. That dismissal is now itself the subject of an application by Mr Ezsias for judicial review. The result has been that, although the National Assembly deny any responsibility for or involvement in Mr Ezsias s suspension or dismissal - or indeed any mandate to direct the NHS Trust to take or refrain from taking any action in relation to Mr Ezsias - Mr Ezsias s attempts to involve the National Assembly in his dispute with his former employer has generated an enormous amount of paperwork, that continues to grow exponentially. That is something to which I shall return. 5. As Maurice Kay LJ indicated in his judgment in the Court of Appeal to which I have referred (at Paragraphs 30-1), whistleblowing claims before the Employment Tribunal have much in common with discrimination cases, as they require an investigation into why an employer took 3

4 certain steps (in this case, Mr Ezsias s suspension and dismissal): and a claimant will often run up against similar difficulties to those facing someone claiming discrimination - including of course the need for disclosure by his employer in respect of why the relevant steps were taken. 6. Therefore, in support of his employment claim, from 12 April 2003 (only days after his suspension) to 3 February 2006 Mr Ezsias made a number of requests of the National Assembly (or of individuals for whom the National Assembly are now responsible) under the provisions of the 1998 Act. Throughout, Mr Ezsias has made the purpose of the requests very clear - although he was employed by the NHS Trust and not the National Assembly, he wishes to have this disclosure to advance his claim before the Employment Tribunal for unfair dismissal. In his request dated 3 February 2006 (which in relation to the claim now before me was the most significant request, for the reasons I give below: see Paragraph 10), he said that the request was made with the specific purpose to commence legal actions against the Assembly Government (which, despite the way it was phrased, was an apparent reference to his current employment claim against the NHS Trust): and in his Particulars of Claim he states that the 3 February 2006 request was made with the specific aim to obtain documents in connection with ongoing legal proceedings (again, an apparent reference to those same proceedings). That this has been the purpose of the requests and these proceedings has been a point repeatedly stressed by Mr Ezsias in the course of this claim (see, e.g., Paragraph 2 of the judgment of Auld LJ of 26 September 2006: it was also stressed at the most recent hearing before me on 24 September 2007). These proceedings were rightly referred to by Mr Ezsias himself as satellite proceedings to what he describes as his main case before the Employment Tribunal (Skeleton Argument 10 September 2007, Paragraph 7(c)). The Requests for Disclosure 7. Before 3 February 2006, Mr Ezsias made four requests for disclosure of data under the 1998 Act, namely: (i) Request dated 12 April 2003, sent to Mrs Ann Lloyd (the Director of NHS Wales) that NHS Wales disclose all documents in connection with my complaints of and treatment by [the NHS Trust]. 4

5 (ii) Request dated 8 February 2004, sent to Mrs Sue Essex (Assembly Member for Cardiff North) that she disclose all data which connected with [Mr Ezsias], [his] concerns and/or complaints, treatment by [the NHS Trust]. (iii) Request dated 10 February 2004, sent to the Care Standard Inspectorate for Wales that it disclose all materials which [were] connected with [Mr Ezsias], [his] referral to and action by the Care Standard Inspectorate in connection with [him], [and his] practising privileges at BUPA or any other private hospital. (iv) Request dated 8 April 2004, sent to Mr Paul Hard (Data Protection Officer, Access to Information Unit, Welsh Assembly Government) for the National Assembly to disclose all data in connection with [him], [his] complaints of and treatment by [the NHS Trust] and the [National Assembly]. 8. On 3 February 2006, he made a fifth request, sent to Dr Brian Gibbons (the Minister for Health of and Social Services, the Welsh Assembly Government) in the following terms: FORMAL REQUEST FOR DISCLOSURE OF ALL MATERIALS AND DOCUMENTS IN THEIR ENTIRETY FOR THE PURPOSE OF LEGAL PROCEEDINGS UNDER DATA PROTECTION ACT 1998 Re Welsh Assembly Government - Minister of Health - Health and Social Security Department - NHS Wales - Care Standard Inspectorate - etc I request the Welsh Assembly Government with specific reference to Dr Brian Gibbons, Minister for Health and all departments currently under his direct and indirect responsibilities that ALL MATERIALS and DOCUMENTS whether in paper or electronic format, private, confidential internal or external memos, letters, notes (including s), records (whatever medium they were recorded) etc. which are connected to me, any issue, decision, consideration etc related to me or connected to overlapping investigations, consideration, actions, intended actions etc to be disclosed in their entirety with the specific purpose to commence legal actions against the Assembly Government. These disclosure must be extended to all records, documents, notes etc received, generated or sent; including drafts, contacts made whether inside the Assembly Government between 5

6 different departments or outside but related to the complaints and responses made to them, which I made against [the NHS Trust], their different officials irrespective of their past or current position. These disclosures also must include complaints made against different officials of the Assembly Government; their notes, records and considerations, actions and intended action in connection with their department or with other departments whether inside or outside the Assembly Government. The disclosure must run from 1 January 1998 with particular reference from 1 January 2002 onwards. The emphases I have marked were in the original. A cheque for 10 was enclosed. 9. Given the obvious overlap with the previous requests, Mrs Gwenda Davies on behalf of the National Assembly wrote to Mr Ezsias on 17 February to seek clarification as to whether the current request is to include the personal data previously provided or whether you only wish to receive that generated since [the] previous requests. Mr Ezsias responded on 18 March, as follows: Your clarification request was noted. However, our letter for disclosure was unequivocal and indeed your letter confirmed that that ALL disclosure should run from 1 January 1998 but with particular reference 1 January 2002 onwards (emphasis in the original). 10. Mr Ezsias claims that the National Assembly failed to comply with the four earlier requests - and he seeks a declaration to that effect, as well as damages for those failures - but, insofar as the requests imposed an obligation on the National Assembly, the data requested on 3 February 2006 appear to include all of the data requested in the previous requests. Therefore, although in due course I shall deal with the issue of compliance with the earlier requests (see, particularly, Paragraphs 107 and following below), in this judgment I shall largely focus on this final request with which Mr Ezsias claims the National Assembly have still failed to comply. The Statutory Provisions 11. A series of statutes (including the Data Protection Act 1984 ( the 1984 Act ), the 1998 Act and the Freedom of Information Act 2000 ( the 2000 Act )) have been enacted to give effect to Directive 95/46/EC, and consequently they have to be construed with the purpose of that Directive 6

7 in mind. The primary purpose of the 1995 Directive is to protect the fundamental rights of individuals, notably the right to privacy and accuracy of their personal data held and processed by others ( data controllers ). 12. In pursuit of that purpose, Parliament has given an individual a right of access to certain information held by others, namely personal data. This is defined as follows (Section 1(1) of the 1998 Act: all statutory references in this judgment are to the 1998 Act unless otherwise indicated): data which relate to a living individual who can be identified (a) from those data; or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller; and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual The scope of personal data has changed over time. Broadly, the 1984 Act was restricted to data held in computerised systems: the 1998 Act expanded the definition to include data held in a manual filing system structured similarly to a computerised system: and, from 1 January 2005, the 2000 Act extended the definition so far as public authorities are concerned to all recorded information including unstructured personal data, by adding a Section 1(e) to the 1998 Act to include this information (Section 68(1) and (2)(a) of the 2000 Act). As one would expect, the National Assembly is a public authority for these purposes (see Section 1(1) of the 1998 Act, and Section 3(1) and Part 1 of Schedule 1 to of the 2000 Act). However, personal data which fall within Section 1(e) and which relate to appointments or removals, pay, discipline, superannuation or other personnel matters in relation to service in any employment by the Crown (including the National Assembly) are exempt from the provisions which extend information access rights to unstructured personal data (Section 33A(2)). In other words, employees do not gain greater access rights under the 2000 Act amendments than are enjoyed by their private sector counterparts. For them, as for those counterparts, they have right to access data from only structured personnel files. 14. The right to access entitles an individual to know whether a data controller is processing any of his personal data and, if so, to be told what it is, its source, why it is being processed and to 7

8 whom the data are or may be disclosed. These entitlements are particularly set out in Section 7(1), as follows: (1) [A]n individual is entitled (a) to be informed by any data controller whether personal data of which that individual is the data subject are being processed by or on behalf of that data controller; (b) if that is the case, to be given by the data controller a description of (i) the personal data of which that individual is the data subject, (ii) the purposes for which they are being or are to be processed, and (iii) the recipients or classes of recipients to whom they are or may be disclosed; (c) to have communicated to him in an intelligible form (i) the information constituting any personal data of which that individual is the data subject, and (ii) any information available to the data controller as to the source of those data, and (d) where the processing by automatic means of personal data of which that individual is the data subject for the purpose of evaluation matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct, has constituted or is likely to constitute the sole basis for any decision significantly affecting him, to be informed by the data controller of the logic in that decision-taking. 15. A data controller is not obliged to supply any information unless he has received a written request and the appropriate fee (Section 7(2)), the general maximum fee being 10 (The Data 8

9 Protection (Subject Access) (Fees and Miscellaneous Provisions) Regulations 2000, SI 2000 No 191, the 2000 Regulations ). A public authority is however not obliged to comply with a Section 7(1) access request in relation to unstructured personal data if the authority estimates that the cost of complying with the request so far as relating to those data would exceed the appropriate limit, such costs being limited to the costs of determining who holds the relevant information, and then locating, retrieving and extracting the information from a document containing it (Section 9A and Paragraph 4(3) of the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 ( the 2004 Regulations ). The appropriate limit is fixed at 600 (Paragraph 3(4) of the 2004 Regulations: the National Assembly is listed in Part 1 of Schedule 1 to the Freedom of Information Act 2000 and hence the higher of the limits applies). Further, where the data controller reasonably requires further information to locate the information sought, he is not obliged to comply with a request until that further information has been provided (Section 7(3)). However, otherwise he must provide the information promptly and in any event within a prescribed period of 40 days (Section 7(8), and Paragraph 4(1)(b) of the 2000 Regulations). The obligation to disclose information in communicable form under Section 7(1)(c)(i) generally must be complied with by supplying the data subject with a copy of the information in permanent form (Section 8(2)). Where a data controller fails to comply with a request for access to personal data, then the Court may order him to comply with the request (Section 7(9)), the Court maintaining a discretion as to whether an order should be made In this claim, Mr Ezsias primarily seeks an order under Section 7(9) requiring the National Assembly to comply with his various requests for access to personal data held by them, and particularly the request of 3 February because he wishes to be able to use the information in his employment claim against the NHS Trust. 17. However, he also claims damages under Section 13, which provides: (1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage. (2) Any individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if 9

10 (a) the individual also suffers damage by reason of the contravention; and (b) the contravention relates to the processing of personal data for the special purposes. (3) In proceedings brought against a person by virtue of this section it is a defence to prove that he had taken such care as in all the circumstances was reasonably required to comply with the requirement concerned. Special purposes in sub-section (2) are defined as (a) the purposes of journalism, (b) artistic purposes and (c) literary purposes (Section 3), none of which is relevant in this case: and consequently Mr Ezsias is restricted to seeking compensation for any damage he has actually suffered by reason of any contravention of the National Assembly s obligation to provide him with information under Section 7(9). The Proceedings 18. These proceedings were commenced as a CPR Part 8 claim on 30 March As I have indicated, Mr Ezsias seeks a declaration that the National Assembly have failed to comply with their obligations under the 1998 Act by failing to make appropriate and timely disclosures, damages for those failures and an order that they do comply with the requests. He relies upon only the requests of April 2003, April 2004 and February 2006: the requests of February 2004 are not relied upon, or even referred to, in the claim. However, the National Assembly have taken no point on this, and have dealt with them in their various submissions: and, in Mr Ezsias s favour, I propose to proceed as if the February 2004 requests had been included in the claim. 19. There was a case management conference before His Honour Judge Wyn Williams QC (as he then was) on 8 June Mr Ezsias appeared in person, and the National Assembly appeared by way of Counsel. The judge ordered the case to proceed as if it had been commenced under CPR Part 7, and he gave standard directions for a Part 7 claim. He ordered the National Assembly to serve a Defence by 22 June: each party to give disclosure by 29 June, with inspection by 6 July: each party to file any further evidence by 10 July: and that the trial of the claim should take place before Butterfield J on 24 July. He refused Mr Ezsias s application to transfer the claim to the Administrative Court in London, alternatively to the Queen s Bench Division of the High Court at the Royal Court of Justice. Mr Ezsias appealed the order as to venue on the ground that Judge Wyn Williams had a possible conflict of interest as a judge resident in Wales - he was at that time 10

11 the Specialist Chancery Judge for Wales - dealing with a case in which the National Assembly were a party, and because of his previous involvement in earlier proceedings between Mr Ezsias and the NHS Trust. Permission to appeal was refused by Tuckey LJ on paper (on 12 July 2006), and then by Auld LJ following reconsideration at an oral hearing (on 26 September 2006). 20. Meanwhile, on 21 June 2006 the National Assembly served a Defence in which they accepted that they had been in breach of their obligations under the 1998 Act in that they had not given access to all of the data properly requested by Mr Ezsias in his various requests within the 40 days required by the statutory scheme: but they (i) asserted that that, by the time of the Defence (and, indeed, by the time proceedings had been commenced), they had given Mr Ezsias the personal data he had sought and which they were obliged to give him under the 1998 Act, and (ii) denied that Mr Ezsias had suffered any damage as a result of their admitted breaches, and consequently they denied that he had any entitlement to damages. 21. In the event, the matter did not come before Butterfield J in July At a second case management conference on 17 July, Judge Wyn Williams vacated the trial date and gave the claim a different direction. As I have indicated, there had been several requests under the 1998 Act by Mr Ezsias, and the National Assembly had responded to these by disclosing a variety of documents on different dates. There was some uncertainty as between the parties as to exactly what in fact had been sent to Mr Ezsias by the National Assembly in aggregate response to his various requests. The judge consequently ordered the National Assembly to serve on Mr Ezsias and file with the Court bundles of documents that they claimed had been disclosed to Mr Ezsias in full or redacted form. That was to be done by 15 September, with Mr Ezsias serving on the National Assembly a list of other documents upon which he intended to rely by 23 October. The National Assembly were then ordered to prepare a list of documents that related to Mr Ezsias that it had, but did not intend to disclose in any form, which list was to be considered by the judge at a further case management conference listed for 26 October. (The Order dated 17 July was varied slightly by an Order dated 16 August 2006, made without a further hearing. Nothing turns on the changes made. I have referred to the timetable set by the latter Order.) 22. There is no doubt that, in making this order, Judge Wyn Williams had in mind Section 15(2) of the 1998 Act, which provides: For the purpose of determining any question whether an applicant under [Section 7(9)] is entitled to the information which he seeks a court may require the information constituting 11

12 any data processed by or on behalf of the data controller and any information as to the logic involved in any decision-taking as mentioned in Section 7(1)(d) to be made available for its own inspection but shall not, pending the determination of that question in the applicant s favour, require the information sought by the applicant to be disclosed to him or his representatives whether by discovery or otherwise This envisages a procedure whereby the Court may in appropriate cases review information which a data controller has not disclosed (and does not intend to disclose) to an applicant and come to a view as to whether disclosure should or should not be made. Under such a procedure, the applicant of course will not see the information the data controller seeks to withhold unless and until the Court makes a decision that it should be disclosed. The reasons for this are perhaps selfevident, but were described by Laddie J in Johnson v Medical Defence Union Ltd [2004] EWHC 2509 ( Johnson ), at Paragraph 26: Section 15(2) makes it clear that, for the purposes of determining whether the data controller was entitled to refuse to disclose any information to the data subject, the court can look at the information itself. However, the data subject may not see this material. The purpose is obvious. A data controller s entitlement under [the 1998 Act] to hold back information from the data subject so as to protect the interests of third parties would be destroyed if all the data subject had to do was make an application for disclosure under Section 7 and then ask to see the withheld material in order to verify for himself whether it has been withheld on proper grounds. It is for this reason that Section 15(2) provides that the information sought by the applicant and held by the data controller shall not be disclosed to him or his representatives whether by discovery or otherwise, until after the court has determined the application in his favour. 24. In that case, the data controller sought to withhold data on the basis that withholding was necessary to protect the rights of third parties - hence the reference to that in the extract - but the same logic applies whatever the basis of withholding might be. Section 15(2) envisages a procedure in which the Court considers the documents that the data controller seeks to withhold (together with the reasons given for withholding them), and determines whether the data should be withheld or disclosed, without the applicant having had the benefit of seeing the documents. 25. Where a data controller wishes to withhold information from an applicant, this procedure has obvious advantages over the directions conventional in other types of case where the parties plead 12

13 their case, give disclosure of evidence (in the form of lists of documents and service of witness statements), and there is then a trial of the issues disclosed on the pleadings on the basis of the disclosed evidence. Disclosure of documents in the former procedure is likely to be inappropriate, given that Section 15(2) confirms that a data controller cannot be required to give disclosure of documents he seeks to withhold pending a decision of the court on the propriety of that course. It is also unlikely (although not inconceivable) that the applicant will be able to make substantive submissions on the issue of disclosability - because he will not have seen the data that are the subject of consideration. 26. It is clear that at the 17 July hearing, Judge Wyn Williams did give the claim an entirely different procedural direction and timetable from that of the Order of 8 June, which it replaced. The standard directions for disclosure of documents found in the earlier order were replaced by the more appropriate and carefully crafted directions in the 17 July and 16 August Orders, which required the National Assembly to (i) to identify and copy to Mr Ezsias the documents it had already disclosed to him, (ii) to identify by list to Mr Ezsias those documents it wished to withhold from Mr Ezsias, and (iii) to copy and file copies of those documents to enable the Court to decide whether they could be withheld or should be disclosed It was unlikely that any further disclosure of documents or other evidence would be necessary or appropriate before the judge embarked on the task of determining whether the documents that the National Assembly were withholding from disclosure contained any data that they were obliged to disclose pursuant to their obligations under the 1998 Act. 27. On 26 October, there was a third case management conference before Judge Wyn Williams. By that date, both Mr Ezsias and the Court had received copies of all the documents that the National Assembly (i) considered they were obliged to disclose to Mr Ezsias under the 1998 Act in response to all of his requests, and (ii) believed had been sent to him previously in satisfaction of those obligations under the 1998 Act. Mr Ezsias had served and filed a list of documents upon which he wished to rely, i.e. a list of documents of which he was aware that had not been disclosed to him that he considered ought to have been disclosed under the National Assembly s obligations under the 1998 Act. In addition, at the hearing itself, the judge was handed a list of documents 13

14 which, although they might refer to Mr Ezsias or his complaints, the National Assembly did not consider they were obliged to disclose to him under the 1998 Act ( the non-disclosable list ). 28. The judge required the National Assembly to serve the non-disclosable list as a list on Mr Ezsias, with annotations against each document indicating why they considered there were no data in the document that were disclosable under the 1998 Act: and to file copies of all of those documents at Court, to enable the judge to consider them (with the National Assembly s reasons for non-disclosure) and decide whether the documents contained any information that was disclosable under the 1998 Act. The order expressly stated that the documents and reasons for non-disclosure would be considered by the judge for the purpose of determining whether any or certain parts of those documents and whether any of the documents disclosed in redacted form be disclosed partially or disclosed fully to [Mr Ezsias] in response to his requests under Section 7 of the Data Protection Act The judge proposed to do that without giving either party an opportunity to make further submissions, unless the judge himself wished to have such submissions on any document or issue because he could not decide the issues of disclosability properly without them. The judge s view of his task was confirmed in the judgment he made in relation to that order (see, e.g., Paragraphs 9 and 13 of that judgment). He was putting into place a judicial process to supervise whether or not the [National Assembly] are correct to maintain that these documents need to be disclosed. As I have indicated, if having considered the documents, the judge considered there were documents or issues upon which he wished to have further submissions, he provided for a further hearing. Otherwise, he listed the matter for a fourth hearing on 28 March 2007, at which he expressly gave both parties permission to apply for summary judgment, or to discontinue, or for further directions as they may consider necessary to progress the claim to trial. By that time, he was to have considered the documents in the nondisclosable list, and come to a view as to whether or not the National Assembly were justified in withholding disclosure on the basis that there were no data in them which ought to have been disclosed to Mr Ezsias under the 1998 Act. 29. Pausing there, it is worth reiterating that it is clear from Judge Wyn Williams Orders of 17 July, 16 August and 26 October 2006 that he had abandoned the procedure set out in the Order of 8 June (which was a standard procedure of disclosure of evidence followed by a trial) in favour of the procedure envisaged by Section 15(2) (i.e. disclosure to the Court of data that the National Assembly sought to withhold, with the Court ruling on the issue of whether the data should be withheld or disclosed without the applicant being privy to the data). The latter procedure replaced the former, and the orders for disclosure of documents made on 8 June was implicitly revoked by 14

15 the later orders for disclosure. Mr Ezsias s applications for enforcement of the disclosure order of 8 June are therefore misplaced. 30. I understand that Mr Ezsias has sought to appeal the Order of 26 October 2007, on the basis that the judge erred in directing himself to usurp the role of the trial judge and direct himself to examine newly disclosed documents and decide what, if any, documents should be disclosed. He does not appear to have sought permission to appeal for Judge Wyn Williams, but an application to the Court of Appeal for permission is pending. That application is of course a matter entirely for the Court of Appeal. I can only say for myself that I consider the procedure adopted by Judge Wyn Williams not only well within the broad ambit of his discretion as the judge case managing this claim, but a procedure patently more appropriate for this claim than the standard Part 7 directions he gave on 8 June, for the reasons I have given above. In this case, standard disclosure of documents was not appropriate. The claim centrally concerns whether the National Assembly have disclosed the data they were bound to disclose to Mr Ezsias under the 1998 Act following his various requests. The documents which have been disclosed by the National Assembly as satisfying their statutory obligation were of course relevant to this issue. Mr Ezsias has received a confirmatory copy of these documents. Other documents which may refer to Mr Ezsias but which the National Assembly have not disclosed to him as they consider they contained no data or further data which had to be disclosed under the 1998 Act are also potentially relevant - but clearly they had to be dealt with under the procedure envisaged by Section 15(2), which required the Court to consider the data in private without the data being disclosed to the applicant. Section 15(2) expressly confirms that such documents are not to be disclosed under CPR Rule 31 unless and until the Court has determined that the data contained in them should be disclosed to the applicant. That procedure does not require any form of general disclosure of documents: and, despite persistent applications to enforce the standard disclosure order of 8 June, Mr Ezsias has not identified what documents could possibly be disclosed by either party pursuant to that order - or indeed what evidence from any witness could possibly be adduced - that could possibly assist the Court in determining whether or not the documents in the non-disclosable list are required to be disclosed under Section Therefore, although the procedural course set by Judge Wyn Williams was a matter for him - and is now a matter for the Court of Appeal - it is a course which I consider entirely appropriate in this case, and a course that I myself would have ordered in similar circumstances. 15

16 32. Judge Wyn Williams was appointed to the High Court in January 2007, and effectively left Wales to take up that appointment in December Given that he had reserved this matter to himself when he was resident in Wales - and after December 2006 would not be available to deal with the matter - and to avoid a jurisdictional lacuna, I made an Order on 9 January 2007 assigning this claim to me, giving the parties permission to apply under CPR Rule 3.3 (5) and (6). As Judge Wyn Williams recognised, this claim required judicial continuity and the assignment of a judge to deal with at least the interlocutory matters involved. As Designated Civil Judge for Wales, it fell to me to ensure that this case was actively and effectively case managed, and that a judge was assigned to replace Judge Wyn Williams. Particularly given that Judge Wyn Williams successor as Specialist Chancery Judge for Wales had not been identified - nor has he or she even yet been appointed - I took the view that I was the appropriate judge to deal with the case. This is of course a case issued and proceeding in the Queen s Bench Division of the High Court. Neither party made any application under the express provision for permission to apply in respect of the order in which I took charge of the management of the claim. 33. On 19 January, I made a further order. The earlier orders of Judge Wyn Williams had required the National Assembly to file at court copies of the documents they did not intend to disclose to Mr Ezsias - but not full copies of the documents they had disclosed in redacted form. However, the review of documents proposed by Judge Wyn Williams orders required the court to consider not only the documents that the National Assembly had not disclosed at all, but also full versions of the documents they had disclosed in redacted form. I therefore ordered the National Assembly to file full copies of the redacted documents, to enable me to review those parts of those documents they had not disclosed. That merely filled a small gap in the procedural scheme ordered by Judge Wyn Williams. On 19 February, I further ordered both parties to identify the orders they proposed to seek at the 28 March hearing, and a skeleton argument. Again, in respect of both of those orders made on the Court s own motion I gave the parties permission to apply. 34. To put it into proper chronological context, it was on 7 March 2007 that the Court of Appeal upheld the decision of Elias J to overturn the Employment Tribunal decision to strike out Mr Ezsias s tribunal claim (see Paragraph 3 above). 35. Prior to the 28 March hearing, as envisaged by Judge Wyn Williams orders, I read and considered both the documents which the National Assembly had disclosed to Mr Ezsias (about 1,000 pages), those which they had withheld (about 1,400 pages), and full and redacted versions of those which they had disclosed in redacted form (about 100 pages). Of the documents that had not 16

17 been disclosed, the reason given for withholding the vast majority was that they contained no personal data. Some were said to be the subject of legal professional privilege. Some were said to contain only a small amount of personal data, and where this was given as the reason it was often said that the personal data that was contained had been disclosed in some other permanent form. In the case of a very small number of documents, longer reasons for non-disclosure were given. In respect of five of the 1,400 pages of documents not disclosed to Mr Ezsias, on 24 January I asked the National Assembly to provide me with better reasons for non-disclosure, which they did on 31 January As I have indicated, the scheme envisaged by Section 15(2) and ordered by Judge Wyn Williams required me to come to a view on the disclosability of the documents in the nondisclosable list on the basis of reading the documents and the reasons given for not disclosing given by the National Assembly. Although I will deal with my reasons in due course, having taken into account everything I had read from both parties and having read the documents themselves, I took the view that the documents that the National Assembly did not propose to disclose contained no personal data that they were bound to disclose to Mr Ezsias under their 1998 Act obligations. 37. However, in his skeleton argument for the 28 March hearing, Mr Ezsias raised a number of issues both with regard to the continuing failures of the National Assembly to comply with their disclosure obligations under the 1998 Act (as he saw them), and procedural concerns. The hearing was only allocated 30 minutes, no doubt because (as I have explained) Judge Wyn Williams had envisaged deciding whether documents were or were not disclosable before the hearing, and the scope of the hearing would be simply to consider the appropriate orders in the light of his findings. It was not expected that there would be further debate about the disclosability of the documents. 38. Half an hour was clearly inadequate to consider in any detail all of the issues Mr Ezsias had raised - particularly as his submissions were unclear as to how precisely he considered the National Assembly were in continuing breach of their obligations of disclosure - and I considered that Mr Ezsias should be given a further opportunity to make any further submissions he wished. However, I was determined to give directions at the 28 March hearing that would focus the proceedings on the determinative issues and would enable an effective hearing to take place on the next occasion. Whilst I wished to give Mr Ezsias an opportunity to set out fully why he considered the National Assembly still in breach of their obligation to disclose under the 1998 Act, I considered it important to indicate to him my provisional view on the disclosability of the data in 17

18 the documents I had read and stress the importance of him setting out precisely and comprehensively the reasons he considered the National Assembly in continuing breach, which I did. Given Mr Ezsias s continuing criticism of the scope of the National Assembly s search for data, I also directed the National Assembly to file an affidavit verifying compliance with the Orders of 26 October 2006 and 19 January 2007 in particular setting out the steps which had been taken to identify and thereafter disclose data the subject of Mr Ezsias s various requests. Otherwise, I adjourned the hearing to 24 September 2007 with a time estimate of one day. 39. Judge Wyn Williams had already indicated that each party had permission to apply for summary judgment or discontinuance on the basis of the findings with regard to disclosability that the Court made on the documents (26 October 2006 Order, Paragraph 2). In the order making the adjournment, I made clear (as I had done at the 28 March hearing itself) that, at the adjourned hearing, the following particular issues would be considered (28 March Order, Paragraph 3): (i) in the light of the affidavit [I had ordered the National Assembly to provide], whether [the National Assembly] has failed to comply with the Orders of 26 October 2006 and 19 January 2007; (ii) whether (in the light of the lists of documents served by [the National Assembly], the reasons for non-disclosure given by [the National Assembly] and the relevant provisions of [the 1998 Act], [the National Assembly] has improperly withheld disclosure of documents from [Mr Ezsias]; (iii) whether [the National Assembly] has breached the provisions of [the 1998 Act] (and if so the extent of the breach and the appropriate remedy/sanction); and (iv) whether, by virtue of how this claim has been conducted, [Mr Ezsias] has suffered prejudice and if so the appropriate remedy. Paragraph 3(iv) was included because Mr Ezsias alleged that the National Assembly had deliberately failed to comply with, not only his 1998 Act requests, but also orders of the Court, in an overt attempt to frustrate his employment claim. He claimed that this was contemptuous, and an attempt to pervert the course of justice. 18

19 40. I directed skeleton arguments to be served and filed, and particularly I ordered in relation to Mr Ezsias s skeleton (28 March Order, Paragraph 5): In relation to each issue, [Mr Ezsias] shall set out precisely each respect in which he alleges [the National Assembly] is in breach or has acted improperly or he has been prejudiced: and, if he seeks damages for breach of [the 1998 Act], the heads of damage sought to be recovered and the basis for their recovery. 41. I considered that those directions gave proper focus to this claim, and maximised the prospect of the 24 September hearing being effective in substantively progressing the claim. Although all of the hearings before Judge Wyn Williams and me have been described as case management conferences, the Court always has the ability to make orders striking out or dismissing a claim where it is appropriate so to do: and in this claim Mr Ezsias could have been under no illusion as to the procedural scheme adopted by Judge Wyn Williams, and that the purpose was to make a final ruling in relation to disclosability of documents without a full trial. For the reasons I have given, I consider that to have been an entirely appropriate procedure, and Mr Ezsias s complaint that I propose dealing with the determinative issues following the 24 September hearing has no substance. Indeed at that hearing he urged me to determine those issues, of course in his favour. 42. Again, Mr Ezsias did not seek from me permission to appeal that order, but has applied to the Court of Appeal for permission. That application too is pending. It has several bases, but is notably based on two interrelated grounds. First, he claims that by using the procedure envisaged by Section 15(2), I (like Judge Wyn Williams) have usurped the role of the trial judge. I have dealt with this point above (Paragraphs 30-31). Second, he claims that I erred in giving a view on disclosability at the 28 March 2007 hearing without any hearing, without calling witnesses, [and without] appropriate presentations, and I consequently improperly pre-determined the claim evidencing both bias and prejudice. Again, as this matter is before the Court of Appeal, I can limit my comments - but I should deal with the matter briefly, given the repeated applications by Mr Ezsias that I recuse myself. I do not consider that I erred in the manner I dealt with the 28 March hearing because: (i) It is in the nature of the procedure envisaged by Section 15(2) that the judge will consider disclosability without the applicant having sight of the data, and therefore probably 19

20 without the applicant being able to make substantive submissions that might assist in that decision. (ii) The procedural scheme fixed by Judge Wyn Williams envisaged the judge deciding issues of disclosability on the basis of what had been filed following the 26 October 2006 Order. He did not envisage either party making further submissions on disclosability at the March 2007 hearing. That is why that hearing was set down for only 30 minutes. In line with the Orders of Judge Wyn Williams, before the 28 March hearing, I considered disclosability of the data in the various documents in the non-disclosable list on the basis of what was then before me. (iii) However, in his skeleton argument for the 28 March hearing, whatever the envisaged scheme might have been, Mr Ezsias made it clear that he did wish to make further submissions on whether the National Assembly had breached their obligations under the 1998 Act to disclose data. He criticises me for not giving a judgment or making an order that the National Assembly were not in continuing breach at that hearing: but I did not do so because I considered that Mr Ezsias ought to be given an opportunity to set out his submissions in a comprehensive manner both in writing and then at a hearing with an adequate time estimate. I had in mind that he was a litigant-in-person. I did not make an order or give judgment precisely because I had not come to a concluded view on disclosability. I had come to a provisional view which, particularly in fairness to Mr Ezsias, I shared with the parties at the 28 March hearing. It is abundantly clear from the Order I made on 28 March that, far from closing my mind to anything Mr Ezsias had to say about the National Assembly s breach of their 1998 Act obligations, I gave Mr Ezsias every opportunity to make out his claim that they had been and were in continuing breach. I deal with his submissions on this issue below (Paragraphs 44-45, and 68 and following below). 43. I also deal with the applications to recuse below (Paragraphs ). 44. For the hearing of 24 September, Mr Ezsias made very lengthy written submissions. He particularly relied upon the following as showing that the National Assembly had been and were in continuing breach of their obligations to disclose data to him under the 1998 Act: (i) A letter from Mrs Ann Lloyd (Chief Executive, NHS Wales) to Mr Jim Hayburn (Chief Executive, the NHS Trust), dated 12 October Mr Ezsias submitted that this 20

21 letter contains disclosable data, but does not appear in any list of documents provided by the National Assembly, whether of documents disclosed, disclosed as redacted or documents on the non-disclosable list. (ii) A letter from Mr Ezsias himself to the First Minister (Mr Rhodri Morgan), dated 12 July Mr Ezsias said that the Public Administration Ombudsman for Wales found compelling evidence that the First Minister received this letter. (iii) A letter from Mrs Jane Hutt (Minister for Health and Social Services) to Mrs Sue Essex (Mr Ezsias s AM), dated 23 December This letter states that the NHS Trust is expected to make an announcement shortly concerning the future employment of Mr Ezsias : but, Mr Ezsias submitted, no documents or data have been disclosed in relation to the source of that information. Under Section 7(1)(c)(ii), a data controller has an obligation to disclose sources of information: and the National Assembly are in breach of their obligations in not disclosing the source of this information. (iv) An between officials of the Care Standards Inspectorate dated 24 February Mr Ezsias submitted that the National Assembly are in breach of their obligation to supply a copy of information in permanent form (Section 8(2)), by merely providing a summary of the information contained in the rather than a copy of the itself. (v) An internal memorandum from Ms Alison Stowell (Public Administration Division, National Assembly Government) to Mr Dennis Patrick (NHS (Human Resources) Division), dated 28 February This document was disclosed in redacted form. Mr Ezsias did not expressly rely upon this document at the September hearing, but in his submissions he appeared to complain that I had failed to deal with it at the 28 March hearing when he did refer to it. (vi) The non-disclosable list states as a reason for non-disclosure that certain documents only contains a small amount of personal data and provide no other reason for the documents non-disclosure. He submitted that the Act does not provide an exemption for small amounts of data, and that all of these documents should be disclosed now. (vii) He submitted that efforts made by the National Assembly to identify and disclose his personal data (as set out in the affidavit sworn by Natalie Lancey on 10 May 2007 on behalf 21