Lt Col Ian Foxley v Ministry of Defence & Ors

A public interest immunity application should be granted where the material is relevant, disclosure creates a real risk of serious harm to the public interest, and the Wiley balance firmly favours withholding it. The court may consider the seriousness of the allegations, the material’s significance to the claim, current rather than historic risks, and information already in the public domain. Where the material is only marginally relevant and withholding it will not prejudice the claim, those considerations strongly support PII. A proposed closed or restricted press hearing is unsuitable where reporting restrictions would operate indefinitely and would not materially promote open justice.

The Government Defendants applied for public interest immunity in proceedings brought by Lt Col Ian Foxley against the Ministry of Defence, the Department for Business and Trade, GPT Special Project Management Ltd and Airbus SE. The application concerned passages in documents including a Ministerial Certificate and Damage Assessment. The court considered open and closed evidence and submissions, including the claimant’s neutral position, the Government Defendants’ submissions, and an alternative proposal from a member of the press for controlled access to the material.

The central issues were whether the material was relevant, whether disclosure created a real risk of serious harm to the public interest, how the competing interests should be balanced, and whether a less restrictive arrangement could protect the public interest while better preserving open justice.

1. The Government Defendants’ PII application was granted in its entirety. The court was satisfied that the material was relevant, that disclosure posed a real risk of serious harm to the public interest, and that the Wiley balance firmly favoured withholding disclosure.

2. In applying that balance, the court took account of the seriousness of the claimant’s allegations, including allegations against the Government Defendants, the possible significance of the material to the claim, the age and continuing relevance of the Damage Assessments, and material already in the public domain, including the sentencing remarks in the related criminal proceedings. Having reviewed the material, the court concluded that it was of marginal relevance and that withholding it would not prejudice the claimant’s claim or his position on the defendants’ summary judgment and jurisdiction arguments.

3. The court rejected a proposal under which press representatives would view and take notes of the material subject to restrictions on retaining or publishing those notes. That course was impracticable and would not promote open justice because there were no realistic circumstances in which disclosure would cease to pose a serious public-interest risk or the Wiley balance would shift. Reporting restrictions would therefore operate indefinitely.

4. An order was directed to be drawn reflecting the grant of the applications in their entirety.