KBL (R on the application of) v SECRETARY OF STATE FOR THE HOME DEPARTMENT & Ors

Part 18 requests in judicial review must be confined to information reasonably necessary and proportionate to enable a party to prepare its case or understand the case it must meet. The court may assess proportionality in the context of the public authority’s duty of candour. That duty requires disclosure of material facts and reasoning, including information that is unhelpful to the authority. It may justify anonymised comparator information where the claimant has an identified case of inconsistent treatment and the information is held by the defendant. Requests remain exceptional and must not become fishing expeditions or seek wide-ranging material unrelated to the pleaded issues.

The claimant, an Afghan women’s rights activist and former senior government official, sought judicial review of the refusal to accept or consider her application for leave outside the immigration rules. She applied under CPR r. 18.1 for further information from the Secretary of State and the other defendants concerning comparator cases, evacuation cohorts, decision-making criteria and relevant procedures.

The defendants contended that the requests were answered, irrelevant, too wide, or amounted to fishing. The application was determined on written submissions. The central issue was whether the requested information was reasonably necessary and proportionate to resolve the judicial review fairly and justly, having regard to the duty of candour.

1. Application partly granted. The court ordered responses to a number of revised and anonymised requests, while refusing or treating as answered other requests.
2. Under CPR r. 18.1 and PD 18 paragraph 1.2, further information may be ordered to clarify a matter in dispute or provide additional information. The request must be reasonably necessary and proportionate to enable preparation of the applicant’s case or understanding of the case to be met. A fishing expedition, seeking to discover an unpleaded claim or future dispute, is impermissible.
3. In judicial review, proportionality must be assessed in the procedural context created by the public authority’s duty of candour. That duty requires full and accurate explanations of relevant facts and decision-making, and disclosure of both supportive and unsupportive material. Part 18 is one legitimate means of giving effect to the duty, alongside specific disclosure where appropriate.
4. Information about relevant comparators was reasonably necessary and proportionate to the claimant’s pleaded challenge based on inconsistency and arbitrariness. The claimant had identified relevant cohorts and some evidential basis for the challenge. The information was within the defendants’ knowledge or possession and could not otherwise be obtained. Anonymisation and editing could protect confidentiality.
5. Requests were refused where they were answered by the evidence, concerned matters not directly comparable or relevant to the claimant’s case, were excessively wide, or sought information already adequately explained. The defendants were ordered to provide revised information about relevant Afghan human rights organisation staff, post-Operation Pitting grants of leave outside the rules, evacuated women’s rights activists, certain Afghan government officials, and the treatment of former Chevening scholars.
6. The defendants were required to respond within 14 days of service, in advance of the substantive hearing.

First-instance judicial review interlocutory application determined by the High Court (Administrative Court). No appellate history is stated in the judgment.