Good Law Project Ltd & Anor v Secretary of State for Health and Social Care

In judicial review proceedings, disclosure is not automatic. Specific disclosure should be ordered only where necessary to resolve the issues fairly and justly. A public authority’s duty of candour requires full and accurate explanations of relevant facts, but does not automatically impose the ordinary disclosure regime.

Redactions require a fact-specific assessment of relevance. Senior personnel and those significantly involved in procurement or decision-making will generally be relevant. Junior staff are generally unlikely to be relevant by identity alone. Confidentiality rings may balance effective scrutiny with privacy, commercial sensitivity and national security.

The claimants sought interlocutory orders in ongoing judicial review proceedings concerning direct awards of personal protective equipment contracts under Public Contracts Regulations 2015, regulation 32(2)(c). They sought disclosure of unredacted names and an explanation of the defendant’s disclosure methodology, including custodians and search terms.

The defendant relied on privacy, commercial sensitivity and national security concerns. The court considered whether the existing explanations and proposed confidentiality ring were sufficient, and whether further specific disclosure should be ordered.

1. Redactions. Open justice is the starting point, but recognised exceptions include privacy, commercial sensitivity and national security. The court must assess whether redacted information is relevant because it supports the claimant’s case or adversely affects the defendant’s case, considering each document, individual or category: [2011] EWCA Civ 1154.
2. Names of senior individuals involved in procurement criteria, high-priority-lane allocation, technical or financial appraisal, or contract-award decisions will generally be relevant. Junior staff may also be relevant where they had significant involvement in referrals or appraisal. Otherwise, junior staff are unlikely to be relevant by identity or contact details alone.
3. The defendant was ordered to place unredacted documents in the confidentiality ring by 4 pm on 28 April 2021. Security-sensitive documents could remain redacted, but the defendant had to explain the relevant categories sufficiently to enable challenge.
4. Disclosure. Disclosure is not automatic in judicial review. The ordinary rules do not apply automatically because judicial review commonly concerns questions of law and public authorities owe a distinct duty of candour and co-operation. Specific disclosure should be ordered only where necessary to resolve the matter fairly and justly, without permitting fishing expeditions: [2018] EWHC 1508, referring to [2007] 1 AC 650 and [1986] 2 All ER 941.
5. The defendant’s evidence adequately explained the disclosure exercise. The court therefore declined to order a further general methodology statement. The claimants’ proper course, if necessary, was an application for specific disclosure.

First-instance interlocutory judgment in ongoing judicial review proceedings. No appellate history was stated in the judgment.