Lessons from the Post Office and Covid Inquiry—how recent scandals highlight disclosure issues in litigation

Time for full disclosure

Controversies concerning disclosure have dominated the UK headlines in recent months. 

Before Christmas, some of former Prime Minister Boris Johnson MP’s WhatsApp messages were considered at the public hearings of the UK Covid-19 Inquiry and the deletion of thousands of further messages was questioned.  Similar issues have arisen in relation to the WhatsApp messages of former Scottish First Minister, Nicola Sturgeon. 

The repeated failures by the Post Office to provide timely and complete disclosure to the Post Office Horizon IT Inquiry have been severely criticised and allegations made that it has sought to frustrate the Inquiry’s progress.

In both cases, contemporaneous communications contained pertinent and at times telling accounts of matters which go to the heart of the issues the respective inquiries are scrutinising.  The disclosure difficulties highlight the wider challenges associated with the disclosure process in any form of litigation. 

Disclosure in legal proceedings

The purpose of ‘disclosure’ is to make information known, which is relevant to the issues in question.  While this may sound simple enough, in reality, dealing with a disclosure process in legal proceedings, whether you are the one disclosing the information, or receiving it, can be complex, difficult to manage, time consuming, costly and can raise a number of related risks and issues which need to be dealt with simultaneously. These can range from matters concerning confidentiality and legal professional privilege to data protection and adverse media coverage.

Where litigation is anticipated or underway, the disclosure process will require the parties to disclose information which may, either support their own case, or undermine the case of the other party(ies).  In civil proceedings one party can seek disclosure of specific documents from the other party, and it is accepted that such a request may lead to the disclosure of both relevant and irrelevant information.  The terms of a disclosure request must be carefully prepared, in order to avoid allegations that the party seeking disclosure is on a spurious ‘fishing expedition’.  

Importantly, the disclosure obligations on all parties extend to requiring that they also disclose information which may harm or undermine their own case.  Public authorities are subject to the well-established duty of candour; a principle which requires that they come to any legal proceedings with ‘clean hands’, having disclosed all information relevant to the case in question. The duty on the parties to proceedings is to assist the court in reaching a fair and impartial decision, based on all the relevant facts, even if those facts may be damaging to the case or reputation of a the party making the disclosure.

Reluctance and relevance

Any party disclosing information may be a reluctant to do so, for a number of reasons, including the time and effort required to search for, collate, review and assess the information which may be potentially relevant. They may also be afraid of making the information public because it is sensitive, embarrassing, or its release is likely to reflect negatively on them.  The obligation to disclose information will likely outweigh these concerns, and in some cases, disclosure may even be compelled by law and an order of the court.  In which case, separate reputation management considerations may need to be explored, to run in parallel with the disclosure which is being made.    

In the case of Mr Johnson’s WhatsApp messages, the UK Covid-19 Inquiry is a statutory public inquiry established under the Inquiries Act 2005, “to examine the UK’s response to and impact of the Covid-19 pandemic”.  The inquiry issued a notice making a formal request for disclosure of unredacted WhatsApp messages, diaries and notebooks of Mr Johnson.  The Cabinet Office (the department of the UK Government that supports the Prime Minister and Cabinet) were reluctant to disclose some of the information requested, initially refusing to do so on the basis that the Cabinet Office considered the request to contain “unambiguously irrelevant material”, thereby arguing the disclosure notice as a whole was unlawful.  The Inquiry Chair, the Rt. Hon Baroness Hallett DBE disagreed! 

The Cabinet Office then challenged the inquiry’s disclosure notice by way of a claim for judicial review, and in so doing, the case raised the question of who is to make the decision on the question of the information’s relevance?  Interestingly, Mr Johnson (who was joined as an Interested Party to the claim) supported the position of the Inquiry, and was in favour of disclosure being made.  

The Cabinet Office’s claim was rejected by the High Court and the disclosure notice was held to be lawful. In their judgment, Lord Justice Dingemans and Mr Justice Garnham drew on parallels between public inquiries, which are convened to address matters of public concern (and which are investigatory and inquisitorial by nature) and the role of the Coroner at an inquest “to ensure that the relevant facts are fully, fairly and fearlessly investigated”.    

The question of ‘relevance’ was a matter for the Inquiry to determine, not the holder of the information. The Inquiry Chair subsequently determined that the Inquiry would deal with any irrelevant material it received by way of deletion of documents that were considered entirely irrelevant, and redaction of irrelevant sections of documents which also contained relevant information. 

Delays and adverse inferences

In civil and criminal litigation, as well as in public inquiries, the case management procedures will determine the scope and timescales for disclosure to be made by the respective parties. Failure to meet the ordered disclosure timetable can have significant consequences not only in terms of delaying the overall timetable for the proceedings, but may also lead to claims being dismissed; costs being awarded against the party in breach; and can even amount to a criminal offence.

The Post Office Horizon IT Inquiry

The reputational fallout from high profile delays can also be significant - take the recent public admonishment of the Post Office as just one example. The Post Office Horizon IT Inquiry, is a statutory inquiry established to examine the implementation and failings in the Horizon IT system at the Post Office.  The matters under investigation have been referred to as ‘the most widespread miscarriage of justice in UK history’, whereby hundreds of subpostmaters were prosecuted and wrongly convicted of offences including theft, fraud and false accounting, based on the faulty Horizon accounting software. 

Testimony from key witnesses, who were due to give evidence to the inquiry’s public hearings in November 2023, was delayed at the last minute, on the very morning they were scheduled to attend. The cause? Late disclosure by the Post Office of large amounts of relevant evidence. The Inquiry Chair, Sir Wyn Williams, expressed his “considerable regret and frustration” that further late disclosure from the Post Office meant that it would not be possible for the scheduled witnesses to give evidence as not only did the inquiry need the time to process the new evidence, “fairness demands” that it be seen by not only the witnesses, but also by the Core Participants, prior to the witnesses giving oral testimony.  It was noted that the late disclosure may result in a delay of some months, before the witnesses could be re-called.  The result being the inquiry witness schedule was adversely impacted; causing increased and potentially wasted costs; as well as upset and distress to those involved.

'Wagatha Christie' case 

Moving beyond delays in disclosure of evidence, a final issue to consider is the loss or destruction of information which is relevant to litigation and which may have been ordered be disclosed.  In the now notorious ‘Wagatha Christie’ case , Ms Vardy brought a civil claim for libel against Ms Rooney. An issue arose in relation to the preservation and subsequent loss of highly relevant evidence.  The judge had ordered disclosure of electronic communications, including WhatsApp messages between Ms Vardy and her agent, Ms Watt, covering a material period in the chronology of events.  However, by the time of the trial, all relevant media files they had sent to each other were ‘missing’.   In her judgment, The Hon. Mrs Justice Steyn DBE concluded “In my judgment, it is likely that Ms Vardy deliberately deleted her WhatsApp chat with Ms Watt, and that Ms Watt deliberately dropped her phone in the sea.” 

In terms of the consequences for Ms Vardy, Mrs Justice Steyn went on to say “If a 'wrongdoer' has 'parted with relevant evidence', the court may draw adverse inferences”, which indeed it did, in finding against Ms Vardy and dismissing her claim.  

As these cases identify, any disclosure process can raise all manner of questions and challenges as well as the potential for related issues concerning reputation management.