The Baby P case may be the disclosure story of the year

It begins to look as if the Baby P case will beat even Earles v Barclays Bank in terms of its long-term influence on disclosure, not least for the likely focus on individual failings. Is this cock-up or conspiracy? Why were documents being photocopied anyway? How about a forensic examination of Ofsted’s computers, even at this late stage?

There are so many discovery cases in the US that there is usually a “Top 10” list, identifying those which were the most important. In the UK, only one or two cases will reach prominence in any year. Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile)  was a relatively straightforward commercial case in which the defendant bank failed to produce documents relevant to the central issue. The disclosure point centred around an unsupported contention that it was disproportionate to search for the documents in question. The judge punished them in costs but expressly ruled out ill intent as a motive.

The Baby P case adds several dimensions – a political element, late disclosure of a significant quantity of documents, a formal report apparently rewritten to improve a case, an implausible explanation for the deficiencies, and now the suggestion that the threat of litigation was met with a memo urging the destruction of certain documents. The combination of political interference, apparent bad faith and inherent incompetence makes for a story with the full force of the best (that is, the worst) of the US ones. Almost everyone involved, apart from the lawyers, is inherently dislikeable individually and as a class, but that must not distract from the messages about justice, not least because justice was the first victim here from the moment the original story broke.

You can get up to date from the report in Saturday’s Times headed Baby P lost evidence was stuck in the photocopier, says childcare watchdog.

The claimant is Sharon Shoesmith, former £130,000 a year head of children’s services at Haringey Council. The defendants are Haringey, Ofsted (the Office for Standards in Education, Children’s Services and Skills) and the Children’s Secretary Ed Balls, who is unpleasant, arrogant, panicky and always obsessed with the political implications of tomorrow’s headlines. The case is Shoesmith’s application for judicial review of the decision to dismiss her.

Although the story has many features which, separately and together, make this case unique, what we have here is a fairly standard tale of corporate failure in the preservation, collection and disclosure of documents. We will have to get to the end of the story before we know who is to blame and whether bad faith or incompetence was the primary cause of the problems as they now appear to the judge. Extreme cases do not necessarily make good object lessons, but they do draw attention to the basics – as long as the basics do not get lost in the furore.

Baby P died in August 2007, and you do not need to know much law to assume that any documents then existing or created thereafter were likely to be relevant to court proceedings of some kind. Various family members were convicted of causing his death on 11 November 2008, and Balls immediately ordered an enquiry. Shoesmith was sacked two weeks later, following a televised press statement in which Balls announced that he had “summarily decided to remove” her from office in response to the findings of Ofsted and others. “Summarily decided” eh? Call me an old pedant (you do that anyway, I know) but it is usually the removal which is “summary”, not the decision to remove. Natural justice, to say nothing of employment law, requires rather more than a summary decision – a bit of evidence perhaps, and maybe an opportunity for the employee to know what the case against her is.

A lot of hate figures emerge here. Social workers achieve publicity only when they neglect a child (as here) or, at the opposite extreme, remove children from their parents arbitrarily and without good reason. Local authorities are models of over-manned incompetence. Ofsted, once the respected guardian of educational standards, is now the petty imposer of unnecessary form-filling and bureaucracy, compliance with which was almost certainly the real reason why Haringey’s social workers had no time to look after Baby P. Overpaid public sector administrators of Shoesmith’s rank are seen as a diversion of resources from the front line. Ed Balls is as loathed within his own party as he is outside it. It seems unlikely, even if he has the “broad” powers to intervene in local child protection arrangements which he claims, that they entitle him to demand the dismissal of someone not employed by his department, quite apart from any questions of natural justice. That, however, is what he did.

The story as it exists at the moment is a mixture of fact, allegations and supposition. It is known that Ofsted omitted to disclose two thousand pages of documents which were later found by a newly-employed lawyer dealing with a Freedom of Information Request. We are told that this was “an administrative error, not the result of lawyerly judgement” and that they were “stuck in the photocopier”. Hmm. This is what is known technically as a “dog ate my homework” excuse: 2,000 pages equates to about four large ring-binders. If you can “lose” that much paper in a photocopier then you must be very stupid indeed, and the more so if you expect the judge to believe you. There is, of course, that other large machine, often standing next to the photocopier, into which you can put 2,000 pages with no expectation of getting them back.  Perhaps someone confused the two machines. The “stuck in the photocopier” story sounds a load of Balls to me.

One wonders, almost incidentally, why anyone was photocopying documents which were presumably created electronically? Surely Ofsted did not print off all those emails and copy them for every party? There must have been some discussion about electronic exchange of electronic documents – that is what the rules require. Little bureaucrats love rules, generally as a substitute for thought, and one would expect enthusiastic compliance with every one. Or is that only when they can impose them on someone else?

One at least of the documents seems to have been hand-written – a note suggesting that the inspectors should delete e-mails relating to the Baby P case. That suggestion compounds the allegation that the existing and apparently complimentary report about Haringey was hastily rewritten to show, conveniently, the inspectors’ grave concerns about Shoesmith’s department. Did anyone think, I wonder, to conduct a forensic examination of Ofsted’s computers? If I had been involved, I would have commissioned an exercise by a forensic expert to dig out every last draft and deleted document from every computer used by Ofsted and its inspectors. If I were against them, I would hope to prove that which can (thus far at least) only be asserted as to the re-writing of the report. If I were acting for Ofsted, I would hope to disprove the allegation and (whilst I was at it) collect all the disclosable documents far more cheaply than by print-and-copy and with none of the risk of the dog eating my homework.

It is probably not too late for that, come to think of it. Come on Shoesmith’s lawyers. Whack in an application for an order for preservation and inspection of Ofsted’s computer systems. They will find it rather hard to resist, even at this late stage, given the imputations which hang over them by now. You never know what you may turn up.

What do we hope for from all this, beyond the schadenfreude which comes from watching people you don’t like screw things up? Whatever Sharon Shoesmith did or did not do, she deserves justice from a court in place of the public pillorying she has had so far – her impromptu assassination at the hands of the ghastly Balls reminds us of Harriet Harman’s assertion that Sir Fred Goodwin’s pension entitlement should be decided by “the court of public opinion”. Once you start down that route, none of us is safe from the arbitrary exercise of power, and not only by powerful government bullies like Balls – every two-bit public sector nobody, every dim policeman, and every over-powerful and under-powered pipsqueak in the uncountable and unaccountable mass of quangos and other authorities will feel entitled to exercise arbitrary power over our lives. We cannot hope, alas, for the “delete everything” memo to be traced back to Balls (unpleasant he may be, but he is not stupid), but we might get confirmation that he created a climate in which public servants subordinated their duty to the task of covering his back.

Splendid though all this would be, the most important implication to come out of this very public mess will be a lesson that the obligation to give disclosure is a strict one and that the duty of search is to be taken seriously. The more extreme a story is, the more people tend to ignore it as an example; stories of ministerial bullying, doctored reports and messages urging the deletion of e-mails may, paradoxically, over-shadow the general message that disclosure obligations are not optional.

I was not aware of the latest twist in the Baby P proceedings when I wrote about local government last week (New website for local government lawyers brings commercial awareness to public sector litigation). That was more about the difficulty of importing standard commercial practice and concepts like proportionality into public sector organisations which are insulated from such realities. The Baby P case moves us beyond the institutional defects of these associations of pen-pushers and paper-shufflers and right down to identifiable individuals. The judge hearing the judicial review case is unlikely to be tolerant of those whose botched case preparation must have added tens of thousands of pounds to the costs, most of which will fall on public funds. I suspect that HHJ Simon Brown QC’s strictures in the Earles case will look mild when compared with what Mr Justice Foskett will have to say about the individuals at Ofsted responsible for the disclosure. It will be very interesting to see where the trail ends: was it merely routine incompetence which resulted in the non-disclosure of 2000 pages of documents, or will the investigation flush out something more sinister?


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 Court Rules, CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Forensic data collections, Litigation costs, Litigation Support. Bookmark the permalink.

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