Redactions to disclosure in judicial review litigation - a further update

We have written previously on the string of recent cases confirming that in judicial review litigation the duty of candour ordinarily requires the names of junior civil servants to be disclosed in unredacted form when providing disclosure.

In a recent decision – MTA v Secretary of State for the Home Department and Ors [2024] EWHC 553 (Admin) (“MTA”) – Mr Justice Swift has provided further guidance on how this general principle should be applied in practice, namely that the parties to judicial review litigation should not effectively contract out of – by way of a consent order – from the obligation to provide disclosure without redactions applied to the names of junior officials.

In the paragraphs which follow we provide an overview of Swift J’s decision and what it means for judicial review litigants.

Background and MTA

As noted, we have written before on several recent decisions confirming that, in judicial review litigation, the duty of candour ordinarily requires the names of junior civil servants to be disclosed in unredacted form when parties provide disclosure.

The background facts to MTA are of limited relevance for present purposes. That said, in summary, the proceedings related to a challenge of the legality of a decision (taken by the Home Secretary) refusing the claimant’s request for resettlement under the ‘Afghan Citizens Resettlement Scheme’. Swift J dismissed the Claimant’s two grounds of challenge and so his judicial review failed. However, of wider relevance are Swift J’s observations as a coda at the end of his judgment.

Coda comment

Swift J observed how in the MTA proceedings, when the documents were disclosed, they were redacted, blacking out the names of civil servants save for those holding posts in the senior grades of the civil service.

Following the Court of Appeal’s judgment in IAB [2024] EWCA Civ 66 (a judgment which upheld Swift J’s decision in IAB) the parties filed a consent order which sought permission from the Court to maintain the redactions of the names of the civil servants.

Swift J rejected this approach. Swift J noted as follows:

“The conclusion reached by the Court of Appeal in IAB rested squarely on the principle of open justice and the common law obligation of candour. It is not open to parties to judicial review claims to attempt to contract out of these obligations.”

Implications

The Court’s judgment in MTA provides another clear ruling that a litigant in judicial review proceedings is not entitled, as a matter of course, to redact, on the ground of relevance, the identities of officials in disclosure.

The MTA judgment further extends and clarifies this principle and makes it clear that this general principle cannot, in effect, be contracted out by the parties’ agreement through a consent order. Ultimately, any party defending a judicial review claim must carefully consider the high threshold if it intends to redact certain information, and where it proposes to do so to seek the Court’s permission through an application to this effect.

Jonathon Blunden is a Legal Director and Christian Grierson is a Junior Associate at Sharpe Pritchard LLP.

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any issue raised in this article, please contact us by telephone or email enquiries@sharpepritchard.co.uk