Robin Simon Graham Makin v Ministry of Justice

In a detailed assessment, the court may decline to inspect sealed sensitive materials where the available evidence establishes that they are irrelevant to the issues being determined. Documentary evidence, including contemporaneous correspondence and statements of truth, may establish that an undertaking to destroy material was complied with and that the claimant knew of that compliance. A claimant’s disbelief does not displace that conclusion. The court should identify the issues actually arising in the proceedings and avoid allowing matters resolved in earlier proceedings to enter the assessment. Costs may be reserved where that is likely to assist a possible commercial resolution.

The claimant brought proceedings against the Ministry of Justice involving data-access issues and matters concerning disability adjustments. He sought to rely on, or required consideration of, sealed bundles said to contain sensitive materials connected with earlier proceedings. The court considered whether those materials should be opened and whether they remained relevant to the present detailed assessment.

The court examined correspondence from 2014, 2017 and 2020, together with witness evidence, concerning destruction of the materials under an undertaking and court order. The central issues were whether the materials had been destroyed, whether the claimant knew that they had been destroyed, and whether they formed part of the present litigation.

1. The sensitive materials were not inspected. The court declined to open the closed bundles because the contemporaneous documents showed that the materials related to subject-access requests arising after earlier proceedings and were not relevant to the present proceedings.
2. Destruction and knowledge were established. Letters from the Treasury Solicitor and the Ministry of Justice, together with certificates and a witness statement verified by a statement of truth, demonstrated that the sensitive materials had been destroyed in accordance with the undertaking and order. The claimant had possessed those documents and therefore knew, at least from September or October 2014, that the materials had been destroyed. His refusal or inability to believe that evidence did not alter the finding.
3. The scope of the present assessment was confined. The sensitive materials formed no part of the litigation identified as E11. The relevant data-access issues concerned the alleged failure to forward requests relating to appropriate adjustments for the claimant’s disability, rather than the destroyed materials.
4. Costs were reserved. The court considered that reserving the costs of the hearing was appropriate, both because there had been no intention to mislead and because a reserved costs order might assist a commercial resolution.