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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> K & Ors v The Secretary of State for Defence & Anor [2014] EWHC 4343 (Admin) (19 December 2014) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2014/4343.html Cite as: [2014] EWHC 4343 (Admin) |
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QUEEN'S BENCH DIVISIONADMINISTRATIVE
COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
K, A and B |
Claimants |
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- and - |
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(1) The Secretary of State for Defence (2) Secretary of State for Foreign and Commonwealth Affairs |
Defendants |
____________________
Nicholas Moss (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 06/11/2014
____________________
Crown Copyright ©
Mr Justice Cranston:
Introduction
Application for interim relief
"[23] The argument that the policies would be unlawful if the claimants did not fall within them proceeds on the basis that the defendants "failed to treat persons in a similar situation similarly". It is suggested that because a CHIS might be at risk in consequence of his work for the British authorities there is no material difference with LES who come under threat. This too appears to me to be a weak claim. A CHIS is in a very different position from a person in open employment properly so called. The best the claimants can establish is that there was a contract for services, rather than employment. The policy in question relates to employees. It applies to people whose employment by the British authorities was overt and thus known to all. It applies to those who were made redundant. These claimants were not made redundant. Their evidence suggests the relationships just fizzled out. The involvement of CHIS is covert with the expectation that it will remain confidential. The claimants are not comparing like with like."
Burnett J added that it was unknown whether there was a separate policy in place to protect CHIS who run into difficulty but whether to have such a policy was a matter of political judgment upon which the courts would be very slow to dictate an outcome: [24].
Application for disclosure
(a) The claimants' application
(b) Legal principles
"When responding to an application for judicial review public authorities must be open and honest in disclosing the facts and information needed for the fair determination of the issue. The duty extends to documents/information which will assist the claimant's case and/or give rise to additional (and otherwise unknown) grounds of challenge … It applies to every stage of the proceedings including letters of response under the pre-action protocol, summary grounds of resistance …"
Usually, the duty of candour will result in the disclosure of the facts and reasoning behind a decision. That includes relevant documents. The application for judicial review can then proceed and the court will not generally be concerned with finding facts. Its concern will be the lawfulness of the decision. The parties may agree sufficient facts for this purpose. Judicial review is unlike ordinary civil litigation: disclosure of documents is not required without the specific order of the court: CPR, 54 APD 12.1.
"[32] It will not arise in most applications for judicial review, for they generally raise legal issues which do not call for disclosure of documents. For this reason the courts are correct in not ordering disclosure in the same routine manner as it is given in actions commenced by writ. Even in cases involving issues of proportionality disclosure should be carefully limited to the issues which require it in the interests of justice. This object will be assisted if parties seeking disclosure continue to follow the practice where possible of specifying the particular documents or classes of documents they require, as was done in the case before the House, rather than asking for an order for general disclosure. "
Lord Brown agreed, adding that disclosure orders are likely to remain exceptional in judicial review proceedings, even in proportionality cases, and the courts should continue to guard against expeditions for adventitious further grounds of challenge: [56].
(c) Factual assumptions for considering permission
"There is a policy for any CHIS who may have been engaged in Afghanistan at the relevant time. The application or otherwise of that policy has not led to the claimants being given equivalent benefits and protections to those available to locally engaged staff under the Intimidation Policy or the Ex-Gratia Scheme."
The Secretary of State contended that the assumption should be limited to MoD CHIS. To my mind that would narrow the scope of the claim unnecessarily.
Application for permission
"[24] These are highly sensitive questions of political judgment which are not for judges to make. The court will supervise and, in certain circumstances, critically review such policies, particularly where threat to life is the context of the policy. However, even on the highest level of anxious scrutiny that this court is able to perform, without overstepping its constitutional functions in this regard, this policy is not vulnerable to challenge."
Conclusion