JZ v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Part 18 requests in judicial review proceedings must be necessary, proportionate and directed to matters already in dispute. They cannot be used as an investigative tool or fishing expedition. The court may nevertheless require further information where the public authority’s duty of candour, and the need to resolve an arguable inconsistency in decision-making, make disclosure necessary for a fair and just determination. The court should balance the likely benefit against the cost and practical consequences of compliance. Privacy and national-security concerns may be addressed through anonymity, redaction, gisting or public interest immunity. The application was therefore allowed in part, with focused information ordered about other Afghan judges relocated under ARAP.

The claimant, an Afghan judge, sought judicial review of decisions refusing his application under the Afghan Relocations and Assistance Policy. He alleged inconsistent and incoherent treatment when compared with other Afghan judges relocated under ARAP or granted leave outside the rules during Operation Pitting.

The substantive claim had not yet been finally determined. The claimant applied under CPR Part 18 for information about the decision-making concerning comparator judges and the operation of the relevant schemes. The central issue was whether that information was reasonably necessary and proportionate to resolve the existing consistency challenge fairly and justly.

1. Application allowed in part. The court ordered the defendants to provide focused information about the 12 ARAP judges other than Judge W, including their judicial roles, geographical service, any service in the Anti-Terrorism Court in Kabul, evidence that they worked alongside HMG, and confirmation of their assessment under ARAP Category 4. Information was also ordered about the apparently anomalous approval of one judge.
2. Under CPR 18.1, the power to order clarification or further information may be exercised at any time. Requests must remain concise and strictly confined to matters reasonably necessary and proportionate to enable a party to prepare its case or understand the case it must meet.
3. Part 18 cannot be used to investigate possible future disputes. Requests in judicial review proceedings remain exceptional. However, the court may consider the context of judicial review, including the public authority’s very high duty of candour. That duty requires full and accurate explanations of material facts and the disclosure of unwelcome as well as helpful material.
4. The claimant’s consistency challenge was legally recognised as an aspect of rationality. The principle that equality of treatment is not a free-standing ground for review did not answer whether information about materially similar decision-making was relevant to the pleaded issue. The court was otherwise left guessing about material aspects of the ARAP decisions, contrary to the duty of candour.
5. Information about Judge W, the Pitting LOTR judges and the general Pitting process was already sufficient. Further Pitting questions were less central because the claimant had not been called forward, no LOTR decision was under challenge, and the process was sufficiently explained. Privacy and security risks did not prevent the focused ARAP order; anonymity, redaction, gisting and, if necessary, public interest immunity could be considered.
6. The defendants were ordered to respond by 4 pm on 19 July 2022. The parties were to make submissions on the impact of the answers by 4 pm on 22 July 2022 and liaise about listing a further short hearing if required.

The judgment records earlier interim relief in [2022] EWHC 771, but no appellate decision.