In August, the Department of Trade and Industry issued a consultation
detailing proposals to amend Part 9 of the Enterprise Act 2002. This
would allow information to be released more easily for civil court
Part 9 of the Enterprise Act 2002 came into force in June 2003,
providing a gateway for the disclosure of information relating to
specific consumer and competition matters. As it stands, information
can only be disclosed in certain circumstances. Namely, the information
is already lawfully in the public domain; there is another piece of
legislation providing for its disclosure; consent has been provided
from all relevant parties; there is an EU obligation to disclose the
information; if disclosure is necessary for the authority to carry outs
its statutory function; if to disclose enables another authority to
carry out its statutory function; and/or the information is to be used
in a criminal investigation. The Act also provides that information can
be disclosed to a public authority overseas, although this is further
restricted by the Act.
The reason for the consultation is that businesses and consumer groups
have brought to light cases where Part 9 of the Act have had a
detrimental effect on them. This is because public authorities cannot
release information to be used in private civil proceedings.
The Trading Standards Service has detailed the problem in their area.
They are unable to provide information to an individual who is wishing
to pursue a civil case against a trader where, for example, that
consumer has been injured by an unsafe product.
Holders of intellectual property rights have also raised issues with
Part 9. Public authorities, which act as enforcers (e.g. Trading
Standards Departments), cannot release information to the owner of such
rights, so preventing them from taking action against counterfeiters in
Whilst it would benefit such business areas if it were made easier for
public authorities to release information for civil cases, there are
hesitations from other sectors of the business community. The reason
that information is not provided for civil cases is to ensure that
sensitive competition information is protected – such as mergers and
market investigations information. EU law does protect certain
information. However, if Part 9 were expanded, it is likely that some
market sensitive information would be released. For example,
competitors may have the ability to access information regarding
another's merger talks and use it to their gain. The DTI have
highlighted that there is a concern that individuals or groups
considering whether or not to bring civil proceedings may use this
option to go on a 'fishing expedition' to see where there might be
material to bring a case.
There are four options put forward in the consultation:
- Do nothing. Leave Part 9 unchanged.
- Part 9 remains unchanged, but the DTI
explores the best way to provide public authorities with examples of
current best practice on how to use Part 9 disclosure gateways.
- Amend Part 9 to allow the release of information for the purposes
of private client proceedings for all cases where restrictions on
disclosure of the information are not required by Community law.
- Amend Part 9 to allow the release of information for the purpose
of private civil proceedings in some cases only, again respecting
Community law restrictions.
That which is required is a balance between protecting individuals or
businesses by allowing the release of information to be used in civil
cases, and protecting commercially sensitive information which, if
released, could provide others with an unfair competitive advantage.
Responses to the Consultation are to be received by 18th November 2005.
Once this date has passed, it is hoped that the DTI can find a middle
road to solve this information predicament.