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What to do when requests for third party disclosure are unsuccessful

1 December 2017 • Kirsty Varley

Evidence from third parties can be crucial to a case – but what can housing providers do when these organisations will not, or cannot, share much-needed information?

Important information from local authorities, social services, or other third party organisations can be vital to a successful outcome when taking legal action, but simply asking for it is no guarantee of disclosure.

Understandably, such organisations will often rely on client confidentiality and/or data protection in order to refuse the disclosure of information as they want to ensure personal, and often sensitive, information about their service users is properly protected. However, the legal tools are available to ensure you get the information required, usually by way of a court order.

This situation is by no means unusual, and we have had experience of applying to the court to order disclosure of varying types of information. For example, in an anti-social behaviour case involving allegations of malicious phone calls, we sought an order for the disclosure of key telephone records. The allegation was denied, but the mobile telephone records of the defendant we acquired proved that calls did take place when they were alleged.

Another common situation is being refused confidential information about the mental health of defendants – often a central issue in in cases where getting evidence that proves or disproves capacity is key.

Case study

This situation arose in a recent rent possession case Croftons’ housing management team advised on. A Suspended Possession Order was agreed on the usual terms that rent be paid plus a set amount off the arrears. Injunction proceedings then followed to tackle ASB that had been perpetrated by the defendant.

The defendant’s mother, who was bed-ridden following of ill-health, lived in a nearby property rented from another RP. The mother’s landlord had also sought injunctive relief against the defendant to keep her away from her mother’s property as the defendant had committed ASB and stolen money from her mother on a few occasions.

The rent SPO was breached and a warrant was issued. Upon receipt of the appointment date with the bailiff the defendant called her landlord to attempt to pay off the rent arrears using the mother’s bank card. The payment was not taken because the mother did not give her consent over the telephone. The defendant did not want the eviction for rent arrears to go ahead and so an application to suspend the warrant of eviction on the basis that the arrears should have been cleared and the payment should have been taken.

As the defendant’s landlord was aware that her mother was vulnerable, liaison took place with social services, who initially agreed to give evidence, but then decided they were unable to do so due to patient confidentiality.

The defendant’s application to suspend the warrant was adjourned and Croftons became aware that a capacity assessment had been undertaken in relation to the mother by social services, and in particular assessing her ability to make decisions about her finances. This enabled Croftons to make an application for third party disclosure of this particular document.

The application was made on notice to the local authority social services department and after they were served with it they disclosed the assessment. This revealed that the defendant’s mother had the capacity to make the decision to give her daughter money but that she did not want to and felt pressured into it. This was put before the court at a contested hearing and the defendant’s application to suspend the warrant was dismissed and our client was then free to apply for a new eviction date.

Our advice

Court orders for third party disclosure are a useful tool when co-operation is not, or cannot, be forthcoming for any number of reasons, and RPs should not be deterred from taking action where crucial evidence exists beyond their control.

 

It’s a simple but very effective tool too, as in our experience such orders are always complied with as contempt of court is a very serious matter.

 

However, Registered Providers should be aware that “fishing expeditions” will not be viewed kindly by the court. You will be required to provide sufficient evidence that the document being sought is actually in existence, and the court will also need to be persuaded that disclosing the information is going to assist the applicant’s case in some way.

 

For more information or advice on any of these issues please contact Kirsty Varley.


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Croftons is the trading name of Croftons Solicitors LLP, a limited liability partnership registered in England and Wales with number OC343375. The term ‘partner’, if used, denotes a member of Croftons Solicitors LLP or a senior solicitor of Croftons Solicitors LLP with equivalent standing and qualifications. A full list of members is open to inspection at the office. Croftons is authorised and regulated by The Solicitors Regulation Authority (SRA) number 508041. Croftons has its principal place of business at The Lexicon, Mount Street, Manchester, M2 5FA.

 

 

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