Corner House Research, R (on the application of) v Director of the Serious Fraud Office

In interlocutory judicial review proceedings, proposed grounds must be pleaded with sufficient clarity to prevent tactical changes and unfairness to the respondent. Permission may be granted where a point is properly arguable, even though the court has not reached a concluded view on its merits.

Disclosure is governed by necessity: there is no automatic entitlement to every document referred to by disclosed material. Disclosure is required where it is necessary to resolve the issues fairly and justly. Contemporaneous records may be required where they materially illuminate the decision and its reasons. A protective costs order may cap the public body’s liability, but voluntary funding obtained by the claimant need not reduce that cap.

This was a further interlocutory hearing in a judicial review brought by Corner House Research against the Director of the Serious Fraud Office concerning the discontinuance of an investigation. The court considered which amended grounds should be permitted, the extent of disclosure required before the substantive hearing, and the appropriate protective costs arrangements.

The proposed grounds concerned the rule of law, national security, diplomatic and commercial considerations, the Attorney-General’s collection of departmental views, and constitutional propriety. The court also considered requests for documents relating to the trigger for discontinuing the investigation and the Director’s reasons.

1. Permission to amend. Grounds in a case of importance must be clear. Loose pleading may permit a change of case and embarrass the respondent. The proposed rule-of-law ground, the national-security consideration, and the challenge concerning ministerial views in the Shawcross exercise were sufficiently arguable, subject to proper amendment. The court indicated that the issue of justiciability remained open.
2. The allegation that the Shawcross exercise itself was improperly conducted was unarguable in its existing form. A narrower allegation that ministers had exceeded constitutional propriety by expressing trenchant views about the Director’s conclusion was permitted to be advanced.
3. Disclosure. Applying Tweed v Parades Commission for Northern Ireland [2007] 1 AC, there is no automatic right to disclosure of every document to which disclosed documents refer. The question is whether disclosure is necessary to resolve the issues fairly and justly. The court therefore refused a general request for all referenced documents, but directed disclosure, subject to sensitivity and redaction, of correspondence which appeared to have triggered consideration of whether the investigation should be halted.
4. Contemporaneous records of the Director’s decision and reasons might be materially important because recollection and later summaries may be affected by the passage of time. The defendant was invited to reconsider disclosure of those documents, with no further hearing directed at that stage.
5. Protective costs. The claimant’s potential liability was capped at £70,000. The defendant’s costs payable if it lost were to be capped at the agreed maximum-based figure, subject to the applicable uplift. The claimant’s voluntary fundraising was not to be deducted from that cap. The question whether legal costs should first have been sought on a pro bono basis was left unresolved and was stated not to provide a precedent on that issue.

The judgment records an earlier interlocutory hearing in October and an existing protective costs order. No appellate history is stated.