Perry, R (on the application of) v London Borough of Hackney & Ors

In judicial review proceedings, disclosure should be ordered only where it is necessary for a fair and just determination of the issues. Broad relevance is insufficient; relevance in this context means necessity. The court must identify the issues from the parties’ statements of case, including grounds of resistance, and assess whether the requested documents are needed to resolve them. Where the challenge concerns non-disclosure, public participation, committee scrutiny, confidentiality or delegation, detailed underlying material may not be necessary if the issues can be determined from the material presented to the decision-maker and any disclosure already made. A possible fundamental error may engage the duty of candour. On the facts, permission to appeal was refused.

Mr Perry brought two conjoined judicial review applications challenging successive planning permissions for a development involving affordable housing. He alleged, among other matters, that the council had unlawfully withheld developer viability assessments and external reviews from the planning committee and the public.

Mrs Justice Patterson granted permission to pursue both judicial reviews but refused specific disclosure of the documents. Sullivan LJ refused permission to appeal on the papers. The Court of Appeal heard the oral renewal, with an appeal to follow only if permission were granted. The central question was whether the detailed reports and appendices were necessary for a fair determination of the pleaded issues.

Permission to appeal refused. Lord Justice Briggs gave the reasons for the court’s decision, with Lord Justice Sharp and Lord Justice Underhill agreeing.

1. In judicial review proceedings, disclosure should not be ordered unless it is shown to be necessary for the just and fair determination of the issues. The relevant concept is necessity, rather than relevance in the broader sense associated with ordinary discovery.
2. The issues must be identified from the claimant’s grounds and the grounds of resistance. Although the requested documents were plainly relevant in the ordinary sense, that did not establish that their detailed contents were needed for a fair determination.
3. The allegations concerning public participation, the planning committee’s scrutiny, alternative means of protecting confidentiality and alleged delegation could be determined by examining the task facing the committee and the material actually placed before it. The precise calculations, assumptions and quality of the underlying viability assessments did not materially affect those issues.
4. The challenge based on the alleged inadequacy of the gist also did not justify disclosure. There was no evidential basis for supposing that the underlying documents contained a fundamental error requiring special mention. The partly redacted viability assessment disclosed the general structure and methodology and preserved the 17 per cent viability conclusion. A fundamental error, if established, might engage the council’s duty of candour and require voluntary disclosure.
5. Disclosure beyond the redacted body of one report was not even arguably necessary, and no other compelling reason for permission was shown. The court therefore refused the oral renewal application; the proposed appeal was not heard.

• Court of Appeal (Civil Division): In [2014] EWCA Civ 1372, the court refused the oral renewal of permission to appeal.
• High Court, QBD, Administrative Court: Mrs Justice Patterson’s order of 23 May 2014 refused specific disclosure, while granting permission for both judicial review applications and directing that they be heard together.
• Interlocutory permission stage: Sullivan LJ refused permission on the papers on 29 July 2014. Patten LJ directed that the oral renewal be heard urgently, with an appeal to follow if permission were granted.