Dominic Kennedy v The Information Commissioner and Another

JurisdictionEngland & Wales
JudgeLord Justice Ward,Lord Justice Jacob,Lord Justice Etherton,Lord Justice Rimer
Judgment Date12 May 2011
Neutral Citation[2010] EWCA Civ 794,[2011] EWCA Civ 367,[2012] EWCA Civ 317
Docket NumberCase No: C1/2010/0283
CourtCourt of Appeal (Civil Division)
Date12 May 2011
Between:
Dominic Kennedy
Appellant
and
The Charity Commission
Respondent

[2010] EWCA Civ 794

Before:

Lord Justice Rimer

Case No: C1/2010/0283

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT

MR JUSTICE CALVERT SMITH

[2010] EWHC 475 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Philip Coppel QC (instructed by Messrs Bates Wells & Braithwaite London LLP) appeared on behalf of the Appellant.

Mr Jason Beer (instructed by Information Commission Office, Charity Commission Legal Adviser) appeared on behalf of the Respondent.

Lord Justice Rimer
1

This is a renewed application by Dominic Kennedy, a journalist with The Times, for permission to appeal against the decision of Calvert Smith J in the Administrative Court upholding an earlier decision of the Information Tribunal that had upheld a decision of the Information Commission that had in turn upheld a refusal of the Charity Commission to provide information to the applicant under the Freedom of Information Act 2000.

2

The applicant had made his request of the Charity Commission on 8 June 2007. The information he requested related to three inquiries, known collectively as the Mariam Inquiry, conducted by the Charity Commission under section 8 of the Charities Act 1993. The results of the first two inquiries had been published on 28 June 2004 and those of the third on 8 June 2007, the date of the applicant's request.

3

There are two grounds to the proposed appeal. The first turns on the correct interpretation of section 32(2) of the 2000 Act. The decisions of the tribunal and the judge were to the effect that the documents in question were and are exempt from production by the provisions of that subsection and will remain so until they become historical records under section 62. By contrast, the applicant contends that, upon the true interpretation of the subsection, the exemption it affords comes to an end when the inquiry ends, although there may in any particular case be other grounds upon which resistance to the production of the information may be justified.

4

In refusing permission to appeal on this ground on the papers on 21 April 2010, Sir Richard Buxton recognised that such ground "potentially raises an important point of principle", namely the interpretation of section 32(2), but he concluded that an appeal on this ground had no prospect of success. With respect to Sir Richard's different view, I disagree that it has no such prospect. I do not say that the argument will succeed; that remains to be seen. But I at least regard the arguments the applicant wishes to deploy as properly arguable and deserving of consideration by this court. I would also regard this first ground as raising an important point of principle of a nature that this court has not yet considered. I therefore give permission on the first ground.

5

The second ground of appeal challenges the tribunal's conclusion, upheld by the judge, that each of the inquiries ended on the date upon which the Charity Commission published its "Statement of Results of Inquiry" (SORI), an exercise of a nature contemplated by section 8(6)(a) of the Charities Act 1993. The SORI for the first two inquiries was published on 28 June 2004 and recorded in paragraph 21 that the inquiries "were closed on 17th May 2004". The SORI for the third inquiry was published on 8 June 2007 and recorded that the inquiry "was closed in April 2007". Contrary to the applicant's arguments below that those two quoted statements meant what they said, the tribunal held that the inquiries in fact closed on 28 June 2004 and the 8 June 2007 respectively, relying, amongst other things, on the evidence of a witness who claimed that the stated dates for closure were only used so that the Charity Commission could be seen as having met its "key performance indicators".

6

The judge upheld that decision of the tribunal. The point made in support of the proposed second appeal on this ground is that the witness's evidence could not override the formal statements in the SORIs, the end of the inquiry being a significant date that marks the end of important coercive powers of the Commission. The practical significance of the point is that if, contrary to the applicant's case, the Charity Commission is right on its section 32(2) argument, its subsequent preference for a later date of closure had the effect of bringing an additional 50 or so documents supplied after the original stated dates of closure within the protection of the extended section 32(2) exemption that the Commission assert.

7

This aspect of the matter seems, if I may say so, to have been handled somewhat ineptly by the Charity Commission, and Sir Richard observed that the applicant was entitled to have some reasonable concern about the tribunal's handling of the matter. My instinct on the point is that the identification of the time of the closing of an inquiry under section 8 of the Charities Act 1993 is likely to depend not on when a SORI says it closed but when, as a matter of substance, it did close. The Charity Commission's practice is apparently to publish draft SORIs inviting the making of representations as to any alleged factual inaccuracies, following which, after their consideration, publication of the SORI will take place. If that exercise and the ultimate publication of the SORI are not together part of the inquiry, I find it quite difficult to understand what they can be. I do not, I should add, regard the opening words of section 8(6) of the 1993 Act reading "Where an inquiry has been held under this section …" as necessarily pointing to an opposite conclusion.

8

I am therefore not impressed that the second ground of appeal obviously has a great deal of mileage in it, although I should record that the judge appears to have regarded the point made by the applicant as having more substance than I might myself give it credit for. In paragraph 49 of his judgment he held that, for the reasons advanced by the applicant, the tribunal could well have ruled in his favour on this point but that he did not propose to disturb its decision as it could not be said to be either perverse or based on a lack of evidence. Mr Coppel, in his written arguments, has criticised that as suggesting that the determination of the moment of closing is an evaluative decision, which he says it is not. As it seems to me, the question was one that raised an issue of mixed fact and law, which the tribunal answered in paragraph 69 by reference to the evidence and submissions that they had heard.

9

The point that the applicant wishes to make on an appeal under this ground is, as I have indicated, that the statements in the SORIs as to the inquiries having closed earlier than their publication were and are conclusive evidence as to their dates of closure. I do not myself understand how and why those statements should be such conclusive evidence, and there is in particular no suggestion that the applicant has somehow changed his position in reliance on them. I find the argument an unconvincing one and I am far from impressed that it is one that has any real prospect of success on an appeal. But even if I am wrong about that, and it can be said to have a real prospect of success, any appeal on this ground will also be a second appeal. It must therefore pass one or other of the CPR Part 52.13 gateways and, like Sir Richard, I am not satisfied that this second ground of appeal raises any important question of principle or that there is any other compelling reason why there should be a second appeal on this point. I am reinforced in that view by what the judge said in paragraph 50 of his judgment to the effect that the Charity Commission have since altered their guidance "to reflect the absurdity of saying that an inquiry had closed before the results of it were known". For practical purposes, that means that the point raised by the second ground of appeal is not, as I understand it, likely to arise again in the future.

10

For these reasons, I therefore give permission for a second appeal on the first ground of appeal but refuse permission to appeal on the second ground.

Order: Application granted on ground 1 only

Between:
Dominic Kennedy
Appellant
and
(1) The Information Commissioner
(2) The Charity Commission
Respondents

[2011] EWCA Civ 367

Before:

Lord Justice Ward

Lord Justice Jacob

and

Lord Justice Etherton

Case No: C1/2010/0283

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

MR JUSTICE CALVERT SMITH

CO/7463/09

Royal Courts of Justice

Strand, London, WC2A 2LL

Philip Coppel QC and Andrew Sharland (instructed by Bates, Wells and Braithwaite LLP) for the Appellant

The First Respondent was unrepresented and did not attend.

Jason Beer (instructed by Charity Commission Legal Services) for the 2nd Respondent

Hearing date: 18th November 2010

Lord Justice Ward

Introduction

1

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