Disclosure of judge’s notes

If there is one thing most commercial barristers regard as sacrosanct and beyond their grasp it is the notes that judge’s take during hearings and trials. Not any more.

In a far-reaching precedent, obtained due to the 4 year persistence and tenacity of an unhappy litigant, Alfred Percival, the Ministry of Justice has been forced to hand over the handwritten notes of an Employment Tribunal to provide an insight into the reasoning behind a judgment.

Mr Percival invoked his rights under the Data Protection Act 1998 to get hold of the notes taken by Judge Ian Pritchard-Witts of the hearing where his claim for constructive dismissal was dismissed. The MOJ argued that the notes should be exempt from a Subject Access Request (SAR) but the Information Commissioner’s Office (ICO) (https://ico.org.uk ) has disagreed and required the notes to be handed over, which they were in January 2017. An official of the ICO stated:

There is no doubt that clarifying the nature of the relationship between judicial notes and the DPA is important … a decision on the relationship is likely to be far-reaching and extend well beyond the particular circumstances of your own case.”

After the ICO communicated its decision it took a further 6 months for the MOJ to comply. Commenting to the Guardian newspaper on the case, an ICO spokesperson said: “The right of access to your own personal data, known as subject access, is a fundamental and powerful provision of the Data Protection Act.”

The precise ratio of the decision is not entirely clear but may reflect the fact that the notes constituted a record of the hearing as well as any views recorded of the judge and the tribunal. However the decision clearly has considerable potential for creating some difficult problems for the MOJ.