Bredenkamp, R (On the Application Of) v Secretary of State for Foreign And Commonwealth Affairs

Disclosure in judicial review is exceptional. A public authority must make full and fair disclosure, ordinarily including documents significant to the decision under review. The court may order disclosure only where it is necessary to resolve the matter fairly and justly. The same threshold applies to requests for further information under CPR Part 18, which should remain exceptional because judicial review ordinarily concerns the legality of public decision-making rather than contested facts or merits. The court must assess each request individually, distinguishing material relevant to the decision under challenge from underlying material, collateral issues and speculative requests.

The claimant challenged decisions and an alleged failure by the Secretary of State concerning his inclusion in, and subsequent removal from, Annex III to Regulation EC 314/2004. He applied for extensive specific disclosure and further information in the judicial review proceedings. The applications initially contained about 240 requests and, by the hearing, still involved numerous categories of documents and questions.

The central issues were whether the requested material was necessary for the fair resolution of the judicial review, whether the requests improperly sought to investigate contested historical events or the merits of the underlying European and United States sanctions decisions, and what further inquiries or disclosure should be ordered.

1. General principles. A public body owes a duty of candour in judicial review proceedings, including a duty to make full and fair disclosure: R v Lancashire County Council ex parte Huddleston [1986] 2 All ER 941. As good practice, a public authority should ordinarily exhibit a document significant to its decision. Judicial review generally concerns legality, not merits, and facts are ordinarily not in issue.
2. Disclosure. The court may order disclosure where appropriate, but disclosure is not automatic. It should be ordered only where it appears necessary to resolve the matter fairly and justly, applying the approach in Tweed v Parades Commission [2006] UKHL 53; [2007] 1 AC 650. Even in proportionality cases, disclosure will usually remain exceptional. The decision is fact-sensitive.
3. Further information. Although no directly relevant authority was identified for CPR Part 18 requests in judicial review, the same necessity threshold should apply. Requests for further information should remain exceptional and should not turn judicial review into ordinary, heavily managed commercial litigation.
4. Application. The court refused requests directed to the European decision-making process, the justification for the United States listing, underlying intelligence and material concerning other individuals where those matters were not necessary to determine the legality of the Secretary of State’s decisions. It ordered targeted further inquiries, witness statements and disclosure of the relevant parts of the ministerial submission explaining the claimant’s delisting, because those matters bore directly on the decisions under challenge.
5. Disposition. The outstanding applications were determined as set out in the judgment. Consequential matters and the form of order were left for consideration at the hearing on 25 September 2013.

The judgment was a first-instance decision in judicial review proceedings. The judgment records an earlier preliminary-issues decision by Ouseley J: [2012] EWHC 3297 (Admin), but the present decision concerned interim applications for disclosure and further information.