R (on the application of the Secretary of State for the Home Department) v First-Tier Tribunal (IAC) (Litigation privilege; First-Tier Tribunal)
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Lane,Rintoul,Lane J |
| Judgment Date | 22 June 2018 |
| Neutral Citation | [2018] UKUT 243 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 22 June 2018 |
[2018] UKUT 243 (IAC)
Mr Justice Lane, PRESIDENT OF THE UPPER TRIBUNAL
UPPER TRIBUNAL JUDGE Rintoul
IN THE UPPER TRIBUNAL
R (on the application of the Secretary of State for the Home Department) v First-tier Tribunal (Immigration and Asylum Chamber) (Litigation Privilege; First-tier Tribunal)
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(1) Whether or not to entertain an application for judicial review is a matter that falls within the Upper Tribunal's discretion, applying well-known principles that apply also in the High Court. Where there is an alternative remedy it would only be in the rarest of cases that the Upper Tribunal would consider exercising its jurisdiction to grant permission to bring judicial review proceedings.
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(2) There is a high threshold to be overcome before the Upper Tribunal will entertain an application for judicial review in challenging an interlocutory decision of the FtT. Once the very high threshold is met it is not necessary for each of the grounds to reach that threshold.
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(3) Litigation privilege attaches to communications between a client and/or his lawyer and third parties for the purpose of litigation. It entitles the privileged party not to disclose information even if it is relevant to the issues to be determined in a court or tribunal. Proceedings in the First-tier Tribunal are sufficiently adversarial in nature to give rise to litigation privilege. The fact that human rights issues are in play does not mean litigation privilege has to be balanced against those issues
Ms C Patry and Mr M Henderson instructed by the Government Legal Department, on behalf of the Applicant.
Ms S Harrison QC and Mr E Grieves, instructed by Birnberg Peirce solicitors on behalf of the Interested Party
The Respondent was not represented
This case concerns the circumstances in which the Upper Tribunal should, when exercising its judicial review powers, entertain a challenge to an interlocutory decision made by the First-tier Tribunal in the course of a statutory appeal; and, whether litigation privilege applies in proceedings before the First-tier Tribunal.
During the hearing of the interested party's appeal against a decision of the applicant Secretary of State to deport him, the First-tier Tribunal ordered full disclosure to the interested party of a partially redacted email between two officials in the Foreign & Commonwealth Office (“FCO”). The applicant challenges that decision; the interested party seeks to support it. The First-tier Tribunal has taken no part in the proceedings.
The applicant asserts that the redacted parts of the document are protected by litigation privilege which has been properly claimed and that the FtT erred in law both in concluding that litigation privilege did not apply and in ordering disclosure. It is also argued that the reasons given for the decision are flawed.
The interested party submits first that the Upper Tribunal should not entertain the action as the applicant has an alternative remedy in pursuing an appeal to the Upper Tribunal against the final decision. He also submits that even if that is not an alternative remedy, the applicant has not met the very high threshold required before the Upper Tribunal would interfere with the decision.
The interested party argues that litigation privilege does not apply in the First-tier Tribunal; and, that if it does, it is not properly claimed here, either because it does not extend to communications between or within a third party, in this case the FCO, or because it has not been made out on the facts. It is also submitted that in any event, by producing the document, even in a redacted form, the applicant has waived privilege.
We turn first to how, why and in what context the email in issue was produced.
In February 2008 the interested party, WM, was convicted of offences under the Terrorism Act 2000 and under the Criminal Law Act 1967 arising out of the failed 21 July 2005 bombings in London. He was sentenced to 17 years' imprisonment, reduced to 13 years on appeal. On 20 June 2013, the applicant made a deportation order against him, seeking to remove him to Somaliland. That decision was appealed to the First-tier Tribunal. There have been, we understand, numerous delays in the matter coming to trial and there has been a significant disclosure exercise undertaken.
The applicant relies in the proceedings before the First-tier Tribunal on the evidence of KR who works in the British Embassy in Ethiopia. In her supplementary statement of 3 March 2017, she explained that she had been made aware of an email between the FCO and the Home Office regarding a conversation between a British Embassy officer and the former Somaliland Minister of the Interior.
As part of the disclosure exercise, and in response to a request from the interested party's solicitors, the applicant disclosed a copy of the email, redacted on the grounds that litigation privilege attached to it. That is confirmed by a witness statement by Mr James Eke of the FCO in which it is said that the email was sent with the dominant purpose of gathering evidence for finalising a Safety on Return Assessment (“SOR”) served on 10 June 2016. Mr Eke maintained in his statement that while part of the email might not attract litigation privilege, as it set out the reporting of the conversation, the remaining parts did attract litigation privilege and that privilege was not waived.
We note in passing that, as Ms Harrison submitted, the redacted email now provided in the bundle is not that served previously. Although the redactions are the same, the original one asserted that the redactions were “irrelevant material”.
The interested party objected to the redactions and sought an order from the First-tier Tribunal that an unredacted copy be served. Following submissions by the parties, the First-tier Tribunal ordered on 14 November 2017, that unredacted copies be provided to the Tribunal by 4pm on 17 November 2017 and that it would then disclose them to the interested party unless they agreed that the redactions were justified.
The applicant then applied to the First-tier Tribunal for that order to be set aside. In response, the FtT agreed to hear further oral submissions on 4 December 2017. The FtT then, on that date, withdrew the order of 14 November 2017, and ordered disclosure of the email, it being open to the applicant to withdraw reliance on it in the appeal.
On 19 December 2017, the applicant commenced these proceedings, seeking the quashing of the order of 4 December 2017, expedition, and a stay on the FtT's order in the interim.
A limited stay until 22 December 2017 was ordered, and following submissions by the parties on that day, Upper Tribunal Judge Rintoul ordered a rolled-up hearing. The stay was not continued, the FtT having undertaken to maintain a stay on its order pending resolution of these proceedings.
The FtT's decision was given orally following submissions by Mr Grieves and Ms Patry, who appeared before the FtT as they did before us. The parties do not dispute the accuracy of the note of the decision drafted by the applicant's counsel.
So far as is relevant, the FtT held:
As far as litigation privilege is concerned, we observe that is no precedent for its application in this Tribunal. No authorities have been submitted and this has been confirmed today by counsel. We cannot definitively say why that may be but it may be because fundamental human rights obligations are at stake in this tribunal.
Even if this were a situation where litigation privilege could apply, we are of the view that Mr Eke's statement is incomplete and incorrect in material respects.
The statement contained inconsistent claims concerning the content of the email. On its face, the email stated “not relevant to this case” but elsewhere Mr Eke and counsel stated that it was the subject of litigation privilege. We find these two statements to be inconsistent.
Mr Eke also stated that he realised that part of the email was not covered by litigation privilege and that it could be disclosed. He stated that it is not the case of litigation privilege being waived. However, counsel claimed that litigation privilege was being waived in respect of the unredacted part of the email. Again, we are not satisfied that both statements could be correct.
For these reasons, even if litigation privilege applied in this tribunal, we would have found that Mr Eke's statement did not establish that it applied here. We do not accept that litigation privilege could override fundamental human rights considerations.
Finally, we took the view that if we were to permit the email redactions to stand, the impression may be created or there may be a perception that the tribunal could have been misled on the evidence and we would wish to avoid our decision being tainted in that way
We therefore order disclosure of the email. We are not satisfied that we have been given any reason for not viewing the email ourselves or for it not to be disclosed to the appellant's representatives (“the nuclear option” according to Ms Patry). If the respondent wishes to withdraw the email that is a matter for her.)
The applicant's case is that FtT erred in concluding that:
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(i) litigation privilege did not apply to proceedings before the First-tier Tribunal
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(ii) the witness statement relied upon to assert litigation privilege was not consistent
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(iii) even if litigation privilege applied, “it could not override a fundamental human right”.
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(iv) there might be a perception that it might be misled by the evidence.
The interested party submits as a preliminary issue that...
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