Secretary of State for Foreign & Commonwealth Affairs v Assistant Deputy Coroner for Inner North London

A person is an interested party to a judicial review if the claim directly affects that person. The effect is direct where quashing the decision would deprive properly interested persons at an inquest of material which the coroner had decided was relevant and should be disclosed to them.

Nevertheless, the court may refuse to join such persons where their participation would make a fair determination impossible, particularly where the claim concerns material considered in an ex parte public interest immunity process. The court may instead permit them to file evidence and make representations under CPR 54.17, and may hear the claim in private under CPR 39.2.

The Secretary of State sought judicial review of the Deputy Assistant Coroner’s ruling on a public interest immunity claim relating to documents relevant to the inquest into Alexander Litvinenko’s death. The Coroner had rejected the claim in part and directed that gists of material be disclosed to the properly interested persons, including members of Mr Litvinenko’s family and other participants in the inquest.

The central issue was whether those persons were “interested parties” under CPR 54.1(2)(f), and, if so, whether they should be joined despite the risk that their participation would prevent review of the confidential material and ex parte judgment.

1. The majority, comprising Goldring LJ and Treacy LJ, held that the properly interested persons were directly affected by the judicial review within CPR 54.1(2)(f). If the Coroner’s decision were quashed, they would lose material which he had decided was relevant and necessary for the proper conduct of the inquest. They would consequently be unable to exercise their procedural rights in relation to that material. The position was materially different from R v Rent Officer Service, ex parte Muldoon [1996] 1 WLR 1103, where an intermediate agency intervened before any effect arose.

2. The majority nevertheless refused to join them. The judicial review was fundamentally concerned with the outcome of the Coroner’s ex parte PII process. Their joinder would probably prevent the court from reviewing the confidential decision at all. That would be contrary to the overriding objective.

3. The court could deal with the case justly by allowing the interested persons and the media to file evidence or make representations under CPR 54.17. The hearing could take place in private under CPR 39.2(3). This was an ordinary private hearing concerning confidential and national-security material, rather than a closed material procedure.

4. Goldring LJ explained that public interest immunity was distinct from a closed material procedure. PII was the established common-law process by which the court could determine whether disclosure of material would cause serious harm to the public interest. The distinction was supported by Al Rawi v Security Service [2012] 1 AC 531.

5. Mitting J agreed that the persons should not be joined, but dissented on whether they were directly affected. In his view the Coroner’s decision was only a decision in principle, and disclosure required a witness summons and a further decision by the court. He regarded the effect as indirect and relied on Al Rawi v Security Service and AHK v SSHD [2012] EWHC 1117 (Admin).

The properly interested persons were therefore not joined, but were permitted to participate through evidence and representations.

This was a first-instance judicial review in the Administrative Court. The challenged decision was the Deputy Assistant Coroner’s ruling of 17 May 2013 on public interest immunity.