Andrew Hale-Byrne v Secretary of State for Business and Trade & Anor

Where sensitive material is withheld in civil proceedings, the court may grant permission under section 8 of the Justice and Security Act 2013 where disclosure would create a relevant risk of harm to national security. The court must give appropriate weight to the expertise and assessment of the government defendants. A narrowed dispute concerning disclosure does not prevent the court from determining the application on the evidence available.

The claimant brought claims alleging misfeasance in public office, breaches of Articles 3, 8 and 18 of the European Convention on Human Rights, and unlawful processing of personal data under Article 5 of the GDPR. The defendants applied under section 8 of the Justice and Security Act 2013 for permission to withhold sensitive material from the claimant and his representatives.

The proceedings had previously been declared suitable for a closed material application under section 6(1) of the Act. Following directions and the narrowing of the evidence and disclosure issues, the court determined whether the requested material could be withheld.

1. The court accepted, giving appropriate weight to the defendants’ expertise, their opinion that open disclosure of the material identified by the special advocates would create a relevant risk of harm to national security.
2. That assessment justified permission under section 8 of the Justice and Security Act 2013 to withhold the requested sensitive material from the claimant and his representatives.
3. Permission was therefore granted to the defendants to withhold the material. The defendants’ summary judgment application and the claimant’s application to join a third defendant remained to be heard.

The judgment records earlier procedural orders by Chamberlain J, including a declaration under section 6(1) of the Justice and Security Act 2013 and directions concerning evidence, disclosure and sensitive material. This judgment determined the defendants’ subsequent application under section 8 of the Act.