Mohamed, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs (Rev 1)

A draft judgment and submissions made in response to it remain confidential until hand-down. The draft may ordinarily be corrected, but reopening substantive argument is permissible only on rare occasions and in exceptional circumstances. Any request for reconsideration must be disclosed immediately to every other party.

The confidentiality principle is not displaced merely because discussions about a draft occur in open court. The court may waive confidentiality in a highly exceptional case where informed public scrutiny and the integrity of the administration of justice require disclosure. Open justice may then justify publication of an earlier draft as well as the perfected judgment.

The Foreign Secretary had appealed against the Divisional Court's decision that seven redacted sub-paragraphs concerning the treatment of Binyam Mohamed should be published. The Court of Appeal unanimously dismissed that appeal. Before hand-down, counsel for the Foreign Secretary invited reconsideration of paragraph 168 of the Master of the Rolls' draft judgment. The paragraph was amended before the other parties' objections had been fully considered, but remained expressly subject to further submissions.

This further judgment determined the final form of paragraph 168 and whether confidentiality should be waived for its original draft. It also addressed the confidentiality governing draft judgments and responses to them.

1. Confidentiality was waived for the original draft of paragraph 168, and that draft was ordered to be included in the further judgment. The perfected version of paragraphs 168–170 was also promulgated. The court reserved costs until the Master of the Rolls had finalised paragraph 168.

2. Circulation of a draft judgment permits the correction of typographical and similar errors. It does not ordinarily give an unsuccessful party an opportunity to reopen the case, repeat earlier submissions or advance new ones. A court may nevertheless be invited, on rare occasions and in exceptional circumstances, to reconsider part of a draft. Any such invitation must immediately be disclosed to the other parties so that they can object.

3. Draft judgments are circulated in confidence, and communications responding to them are governed by the same principle. The court held that CPR Part 31.22 was not directed to submissions or discussions concerning draft judgments that occurred in open court. It therefore did not justify any breach of confidentiality. Wider circulation requires an application asking the court to review confidentiality in the circumstances of the particular case.

4. The efficiency and convenience achieved by confidential circulation generally support strict observance of the principle. Absolute rigidity would, however, be inconsistent with the better administration of justice in a case of high exceptionality. Here, the second draft was already in the public domain and publication of counsel's letter had produced a partial and potentially misleading account of the first draft. Disclosure of the exact text was necessary to permit informed comment.

5. Publication was also justified by open justice and the need to protect confidence in the integrity of the judicial process. Disclosure would dispel any mistaken perception that a Minister or his counsel had improperly interfered with the court. The decisions about the handling of the draft had been collective decisions of the court, although the Master of the Rolls remained responsible for the contents of his own judgment.

1. Court of Appeal (Civil Division): The court had unanimously dismissed the Foreign Secretary's appeal against publication of the seven redacted sub-paragraphs. In this further judgment, reported under [2010] EWCA Civ 158, it waived confidentiality over the first draft of paragraph 168 and promulgated the perfected text.

2. Divisional Court of the High Court: Ordered that seven previously redacted sub-paragraphs of its first judgment should be made public. Its citation is not stated in this judgment.