Charles & Anor, R (On the Application Of) v The Secretary of State for Foreign And Commonwealth Affairs & Anor

In judicial review, disclosure is ordered only where it is necessary for the fair and just determination of the issues. Standard disclosure does not arise automatically, and a party cannot use disclosure to conduct a speculative search for documents that the other side has identified as irrelevant without grounds for doubting that assessment.

Treaty interpretation is primarily a judicial exercise. The court must begin with the ordinary meaning of the treaty terms in context and in light of the treaty’s object and purpose. Expert evidence is not admissible merely because an expert has diplomatic experience or offers views about the parties’ presumed intentions. It may assist where language has a particular technical meaning, but no such meaning was identified here. Internal governmental papers were not travaux préparatoires for the purposes of supplementary treaty interpretation.

The claimants, the parents of Harry Dunn, sought judicial review concerning the Foreign Secretary’s conclusion that Anne Sacoolas enjoyed diplomatic immunity following a fatal road collision. The substantive judicial review had not yet been heard.

At this case management hearing, the claimants applied for specific disclosure from the Foreign Secretary and permission to rely on expert reports from Sir Ivor Roberts concerning the interpretation of Exchanges of Notes between the United Kingdom and the United States and the Vienna Convention on Diplomatic Relations.

The court determined whether the requested documents were necessary for the fair and just resolution of the pleaded grounds and whether the proposed expert evidence was relevant and reasonably required.

1. Disclosure. The court applied the principle stated in Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650, and confirmed in R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin), that disclosure in judicial review is limited to material necessary for the fair and just determination of the issues. The duty of candour requires full and accurate explanations of relevant facts and disclosure of material reasonably required for an accurate decision, as explained in R (Quark Fishing) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 and Graham v Police Service Commission [2011] UKPC 46.
2. Standard disclosure is not automatic in judicial review. Civil Procedure Rules 1998, rule 31.14, does not apply, and paragraph 12.1 of the Practice Direction under CPR Part 54 provides that disclosure is not required unless ordered by the court. The claimants’ requests were disproportionate, speculative, or unrelated to the pleaded issues. There were no grounds to doubt the defendants’ evidence that relevant material had been disclosed. The disclosure application was therefore refused.
3. Expert evidence and treaty interpretation. Assuming, without deciding, that the Exchanges of Notes constituted a treaty, the court applied the principles in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. The primary task was to determine the ordinary meaning of the agreed language in its context and in light of the treaty’s object and purpose. The court rejected an inquiry into unspoken assumptions or the presumed understanding of diplomats. The authorities, including R v SSHD ex parte Adan [1999] 1 AC 293, R v Asfaw [2008] 1 AC 1061, Deep Vein Thrombosis & Air Travel Litigation [2006] 1 AC 495, Czech Republic v European Media Ventures SA [2008] 1 All ER (Comm) 531 and Reyes v Al-Malki [2017] 3 WLR 923, supported that approach.
4. Sir Ivor Roberts’ reports did not identify any ambiguous term with a specific technical diplomatic meaning, or any relevant diplomatic rule or practice. His views therefore addressed the ultimate legal issue and were inadmissible. The internal FCO papers relied on in the addendum were not publicly accessible preparatory materials of the kind contemplated by Article 32. The court relied on Fothergill v Monarch Airlines [1981] AC 251 and Effort Shipping v Linden Management (The Giannis NK) [1998] AC 605. Permission to rely on the reports was refused.

The judgment concerned a case management conference in pending judicial review proceedings. Supperstone J had directed a rolled-up hearing to determine permission and, if granted, the substantive claim; that hearing had not yet taken place.