England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
ON APPEAL FROM THE INFORMATION TRIBUNAL

		Royal Courts of Justice Strand, London, WC2A 2LL
		27 April 2007

Mr Justice Davis :

Introduction and Background

1. These proceedings raise, among other issues, questions of interpretation of the Freedom of Information Act 2000. I was told during the hearing before me that this is the first time that the provisions of that Act have been considered under appeal to the High Court. I do not suppose that it will be the last.
2. Because of the nature of the initial challenge raised – which goes to the jurisdiction of the Information Commissioner and the Information Tribunal – these proceedings have also become procedurally complex. The reason is this.
3. A number of persons and lobby groups has in the past expressed the view that the reporting by and news coverage of the BBC in relation to the Middle East and in particular the conflict between Israel and the Palestinians was not even handed. Because of the concerns raised the BBC decided to ask Mr Malcolm Balen, a very experienced journalist, to advise on the coverage by the BBC of Middle Eastern matters. During 2004 Mr Balen produced an internal written report. This was eventually placed for consideration by the Journalism Board of the BBC on 9^th November 2004. Subsequently in 2005 a panel, chaired by Sir Quentin Thomas, was appointed by the Board of Governors of the BBC to provide an external independent review of BBC reporting of Middle East affairs. That panel reported in April 2006. In the meantime the BBC had created the post of Middle East Editor, Mr Jeremy Bowen being appointed and taking up his post in June 2005.
4. The Balen Report has never been published. Mr Sugar wished and wishes to see it. He has taken the view that he was entitled to see it under the provisions of the Freedom of Information Act 2000 ("the FOIA"). He made a written request to the BBC accordingly on 8^th January 2005. The response of the BBC was to the effect that the Balen Report directly impacted on the BBC's reporting of crucial world events and that the FOIA did not apply.
5. Mr Sugar was dissatisfied with this response. He complained to the Information Commissioner ("IC") on 18^th March 2005. The IC then corresponded extensively with Mr Sugar and, separately, with the BBC. The IC also studied the Balen Report for himself. (It was indicated on behalf of the BBC that the Balen Report was available for me to read should it become necessary and should I wish to do so. But in the event, and no doubt because of the matters actually raised before me, no one asked me to read it. In the circumstances – and when Mr Sugar himself, of course, had not seen it – I therefore did not myself read the Balen Report). By a detailed letter of 24^th October 2005 the IC set out his provisional view that the Balen Report was held for the purposes of journalism, art or literature (what before me was, for shorthand convenience, called "the derogation"); and that in the circumstances the BBC was not a public authority under the FOIA in respect of Mr Sugar's request and was not obliged to release the contents of the Balen Report. Mr Sugar did not seek to submit to the IC any further comments (although invited to do so); and on 2^nd December 2005 the IC confirmed his final decision that the Balen Report was not disclosable, on the basis previously indicated in the provisional decision letter. The letter concluded with the words: "I would also like to take this opportunity to inform you of your right to request a Judicial Review of our decision."
6. Mr Sugar did not at that time seek a Judicial Review of that decision. Instead on 30^th December 2005 he sought to appeal to the Information Tribunal ("the Tribunal") invoking the provisions of s.50 of the FOIA for that purpose. The position of the IC at that time was that Mr Sugar had no right of appeal under s.50, that the IC had served no appealable decision notice and that the Tribunal had no jurisdiction to entertain such an appeal. That also was the view of the BBC.
7. A preliminary issue was directed by the Tribunal on the jurisdiction point, it having indicated an initial view that it did have jurisdiction. A hearing was then held on 14^th June 2006 and a ruling given. It appears that the IC had by then had a change of mind and was not now disputing the jurisdiction of the Tribunal. The BBC, however, was.
8. By its decision dated 14^th June 2006, and formally issued on 29^th August 2006, the Tribunal ruled that it did have jurisdiction to entertain Mr Sugar's appeal. Having so ruled, the Tribunal then proceeded to deal with the substantive issue raised on the appeal (which in argument before me was called "the journalism issue"). The hearing in total before the Tribunal lasted some 3 days. A good deal of evidence – both written and oral – was adduced, much of which had not been deployed before the IC. Mr Sugar appeared in person at that hearing; the IC and the BBC was each represented by counsel. At the hearing the BBC was arguing for a broad approach to the phrase "for the purposes of journalism" by reference to the provisions of the FOIA (to which I will come). Mr Sugar was arguing for a narrower approach.
9. The decision of the Tribunal on the journalism issue, also issued on 29^th August 2006, set out a full exposition of the legislative history of the FOIA and also gave a detailed summary of the evidence and arguments deployed. The Tribunal indicated that, in effect, the Balen Report could indeed be said to have been created for the purposes of journalism. But it decided, on its view of the evidence, that by the time of Mr Sugar's request of 8^th January 2005 the Balen Report was not held for the purposes of journalism. Perhaps the nub of the Tribunal's reasoning is to be found in paragraph 133 of its decision:

"The Tribunal is clear that, when originally commissioned, Mr Balen's work was for predominantly journalistic purposes. It formed a part of the third leg of the meaning of journalism that the Tribunal has adopted, in that it was primarily an output review intended to assure and enhance quality. However, when elevated to the Journalism Board on 9^th November 2004, as a formal report, it was being used for, and hence was held for, wider purposes of strategic policy and resource allocation, which lie outside the scope of the derogation."

It accordingly gave as its decision that at the time of Mr Sugar's request for a copy of the Balen Report it was "held for purposes other than those of journalism, art or literature".

10. The BBC was, and is, aggrieved at that decision, taking the view that it was unsustainable on the evidence and arguments advanced before the Tribunal and was contrary to the provisions of the FOIA. In addition, however, the BBC also maintained its view that the Tribunal had no jurisdiction to entertain the purported appeal and that Mr Sugar's remedy lay in seeking Judicial Review of the IC's original decision (which, of course, had also been the initial view of the IC). This is where the procedural complexities arise. Section 59 of the FOIA permits an appeal from a decision of the Tribunal on a point of law to the High Court. The BBC has thus sought to appeal to the High Court on both the jurisdiction decision and the journalism decision. But, in part to meet any point that a lack of jurisdiction is asserted, the BBC also as a precaution sought to challenge the decisions of the Tribunal by concurrent Judicial Review proceedings.
11. For his part Mr Sugar – to meet the possibility that the court might hold that the Tribunal had had no jurisdiction – has rather late in the day, on the 1^st February 2007, issued his own Judicial Review proceedings, challenging the original decision of the IC dated 2^nd December 2005 (although also stating that such decision had been "reaffirmed" by the IC on various dates subsequently during 2006). That matter came before me as an application for permission. Given the circumstances, the IC and the BBC have, very fairly, raised no point as to delay and I grant the necessary extension of time. To the extent that Mr Sugar sought at the hearing before me to amend the claim I will deal with the proposed amendments later in this judgment.
12. At the hearing before me the IC was represented by Mr Hooper. The BBC was represented by Miss Carss-Frisk QC and Miss Gallafent. Mr Sugar appeared before me in person. I should explain that Mr Sugar had previously obtained from Forbes J a protective costs order in his favour. That, among other things, imposed strict requirements as to the length of time in which he could orally address the court. In part because of that he has put his written arguments before me in very great detail. I did in the event – in the course of the hearing before me which lasted for 2 days – think it right significantly to relax the limit initially imposed by the protective costs order as to the time in which Mr Sugar orally could address me. At one stage Mr Sugar did say (I think neither with hope nor with expectation) that he would have liked himself to address me for 2 days. Nevertheless he put his case forward very fully and clearly and indeed, on the jurisdiction issue, he made common cause with the IC and adopted Mr Hooper's submissions. Mr Sugar, I might add, is himself a lawyer. He knew the issues raised here backwards. I also would like to add that he addressed me throughout with clarity, with cogency and with courtesy.
13. I am grateful to all concerned for the very detailed and careful written and oral submissions advanced. I intend no disrespect if I do not deal specifically with every point or every nuance of argument raised. At some stages of the argument – in particular that of Mr Sugar – I got the impression that I was being invited to contribute a judicial exegesis on the whole intent, purport and operation of the FOIA. But I do not think generalised observations or abstract comments of my own which hereafter might be used as glosses on the wording of the FOIA are likely to be of much value. I try to confine myself to the issues arising in this particular case.
14. I should also say that I dealt with the jurisdiction issue during the first day of the hearing before me. It seemed to me convenient to announce my decision on that at the time, after reflecting on the arguments, so that the parties would know what they needed to deal with thereafter (that is, either the BBC's appeal/Judicial Review against the Tribunal's decision on the journalism issue or Mr Sugar's Judicial Review challenge to the original IC decision). My decision so announced was that the Tribunal did not have jurisdiction. I indicated that I would give my reasons later and this judgment includes those reasons.

The legislation

15. The title to the FOIA describes it as "An Act to make provision for the disclosure of information held by public authorities or by persons providing services for them and to amend the Data Protection Act 1998 and the Public Records Act 1958; and for connected purposes". The FOIA is, in its way, an Act of an entirely new kind. However, it does have at least some kinship with aspects of the special purposes and exceptions contained in the Data Protection Act 1998; and clearly it must have major underpinning by reference to the concepts enshrined in Article 10 of the European Convention on Human Rights with regard to the freedom to receive and impart information: although it was rightly acknowledged before me that the FOIA goes very much further than Article 10 would of itself require. In very broad terms, the FOIA would seem principally to be directed at achieving openness in requiring information to be revealed by defined public authorities but with a necessary acknowledgment of the need for confidentiality or privacy when disclosure is not in the public interest. An undermining of what may be called journalistic, artistic or literary integrity may in general terms, as it seems to me, be perceived to be not in the public interest.
16. A vast number of materials was set before me to explain the intention and purpose of the FOIA. With respect, they ultimately did not assist me very much on the issues I actually had to decide. In fact, some of the materials which Mr Sugar did seek to put before me (for example, letters from Home Office officials or submissions made at the Bill stage) with a view to casting light on the meaning of the FOIA are in any case not properly admissible for such purpose. For those interested, an informative exposition on the legislative background and rationale can be found in Chapter 1 of Mr Coppel's book on Information Rights (2004).
17. The general right of access to information held by public authorities is set out in Part I of the FOIA. Section 1 of the FOIA reads as follows:

"1. - (1) Any person making a request for information to a public authority is entitled-

 (a) to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b) if that is the case, to have that information communicated to him.

(2) Subsection (1) has effect subject to the following provisions of this section and to the provisions of sections 2, 9, 12 and 14.

(3) Where a public authority-

 

(a) reasonably requires further information in order to identify and locate the information requested, and

 (b) has informed the applicant of that requirement,

 the authority is not obliged to comply with subsection (1) unless it is supplied with that further information.

(4) The information-

(a) in respect of which the applicant is to be informed under subsection (1)(a), or

(b) which is to be communicated under subsection (1)(b),

is the information in question held at the time when the request is received, except that account may be taken of any amendment or deletion made between that time and the time when the information is to be communicated under subsection (1)(b), being an amendment or deletion that would have been made regardless of the receipt of the request.

(5) A public authority is to be taken to have complied with subsection (1)(a) in relation to any information if it has communicated the information to the applicant in accordance with subsection (1)(b).

(6) In this Act, the duty of a public authority to comply with subsection (1)(a) is referred to as "the duty to confirm or deny".

18. Section 2 provides for certain exemptions. In the circumstances set out in s.2(1) it is stated that "section 1(1)(a) does not apply". By s.2(2), in respect of certain information exempt under Part II, it is stated that "section 1(1)(b) does not apply" to the extent stated.
19. Section 3 is headed "Public Authorities." Section 3(1) provides as follows:

"3. - (1) In this Act "public authority" means-

(a) subject to section 4(4), any body which, any other person who, or the holder of any office which-

(i) is listed in Schedule 1, or

(ii) is designated by order under section 5, or

(b) a publicly-owned company as defined by section 6."

20. Section 4 provides for the amendment of Schedule 1. Section 5 gives power to designate further public authorities. Section 7 is headed "Public authorities to which Act has limited application". Among other things it provides as follows:

"7.- (1) Where a public authority is listed in Schedule 1 only in relation to information of a specified description, nothing in Parts I to V of this Act applies to any other information held by the authority.

(2) An order under section 4(1) may, in adding an entry to Schedule 1, list the public authority only in relation to information of a specified description."

21. There are various other provisions in Part I which I need not specifically set out here. Part II relates to exempt information. Part III relates to the general functions of the Lord Chancellor and the IC. Part IV deals with enforcement and Part V with appeals.
22. Section 50 (contained in Part IV) provides as follows:

"50. - (1) Any person (in this section referred to as "the complainant") may apply to the Commissioner for a decision whether, in any specified respect, a request for information made by the complainant to a public authority has been dealt with in accordance with the requirements of Part I.

(2) On receiving an application under this section, the Commissioner shall make a decision unless it appears to him-

(a) that the complainant has not exhausted any complaints procedure which is provided by the public authority in conformity with the code of practice under section 45,

(b) that there has been undue delay in making the application,

(c) that the application is frivolous or vexatious, or

(d) that the application has been withdrawn or abandoned.

(3) Where the Commissioner has received an application under this section, he shall either-

(a) notify the complainant that he has not made any decision under this section as a result of the application and of his grounds for not doing so, or

(b) serve notice of his decision (in this Act referred to as a "decision notice") on the complainant and the public authority.

(4) Where the Commissioner decides that a public authority-


(a) has failed to communicate information, or to provide confirmation or denial, in a case where it is required to do so by section 1(1), or

(b) has failed to comply with any of the requirements of sections 11 and 17,

the decision notice must specify the steps which must be taken by the authority for complying with that requirement and the period within which they must be taken.

(5) A decision notice must contain particulars of the right of appeal conferred by section 57.

(6) Where a decision notice requires steps to be taken by the public authority within a specified period, the time specified in the notice must not expire before the end of the period within which an appeal can be brought against the notice and, if such an appeal is brought, no step which is affected by the appeal need be taken pending the determination or withdrawal of the appeal.

(7) This section has effect subject to section 53.

23. Section 51 empowers the IC to issue an information notice in the circumstances there specified, including where he has received an application under s.50 or where he reasonably requires any information for the purposes of determining whether a public authority has complied with any requirement of Part I. Section 52 empowers the IC to serve an enforcement notice. Section 54 empowers the IC to certify, among other things, a failure to comply with an information notice or an enforcement notice.
24. Section 56 (also contained in Part IV) provides as follows:

"56. - (1) This Act does not confer any right of action in civil proceedings in respect of any failure to comply with any duty imposed by or under this Act.

(2) Subsection (1) does not affect the powers of the Commissioner under section 54."

25. Then, in Part V, there are provisions relating to appeals. Sections 57-59 provide as follows:

"57. - (1) Where a decision notice has been served, the complainant or the public authority may appeal to the Tribunal against the notice.

(2) A public authority on which an information notice or an enforcement notice has been served by the Commissioner may appeal to the Tribunal against the notice.

(3) In relation to a decision notice or enforcement notice which relates-

(a) to information to which section 66 applies, and

(b) to a matter which by virtue of subsection (3) or (4) of that section falls to be determined by the responsible authority instead of the appropriate records authority,

subsections (1) and (2) shall have effect as if the reference to the public authority were a reference to the public authority or the responsible authority.

58. - (1) If on an appeal under section 57 the Tribunal considers-

(a) that the notice against which the appeal is brought is not in accordance with the law, or

(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,

the Tribunal shall allow the appeal or substitute such other notice as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal.

(2) On such an appeal, the Tribunal may review any finding of fact on which the notice in question was based.


59. - Any party to an appeal to the Tribunal under section 57 may appeal from the decision of the Tribunal on a point of law to the appropriate court; and that court shall be-

(a) the High Court of Justice in England if the address of the public authority is in England or Wales,

(b) the Court of Session if that address is in Scotland, and

(c) the High Court of Justice in Northern Ireland if that address is in Northern Ireland."

26. Schedule 1 then contains a very long list of public bodies. Most in Part VI of Schedule 1 (which is headed "Public Authorities") are simply designated by name. But a few are not. One such is the BBC. Its entry in Part VI of Schedule 1 is as follows:

"The British Broadcasting Corporation, in respect of information held for purposes other than those of journalism, art or literature."

27. The FOIA itself (in common with the Data Protection Act 1998) offers no definition of "journalism" or "art" or "literature".

The Decision of the IC

28. The decision of the IC was made on 2^nd December 2005 but it in effect incorporated the reasons given in the provisional decision of 24^th October 2005. Since it is necessary to have regard to the full text, those two letters are annexed to this judgment.

The issue of jurisdiction

29. The initial question here arising is whether the BBC is a "public authority" for the purposes of the request made by Mr Sugar with regard to the Balen Report. If it is not then, as the BBC argues, there will have been no "request for information…to a public authority"; and so for the purposes of s.50(1) the IC will not have received an application under that section for the purposes of serving a decision notice: it being pointed out that the IC's powers under s.50(3) only exist when he has received an application "under this section". It is also submitted that if that is so and if no decision notice is served no appeal would lie to the Tribunal under s.57(1).
30. It is clear that, at the time, the IC took the view that the BBC was not a "public authority" for this purpose (because, as the IC had decided, the Balen Report was held for the purposes of journalism). That is reflected by the actual wording of the decision letter, read with the provisional decision letter, and, for good measure, by the closing statement in the letter that a challenge could be made by Judicial Review – not by way of appeal to the Tribunal, as s.50(5) would otherwise have required had the IC conceived that he was serving a decision notice. Thus it was that, at that time, the IC considered that there was no right of appeal to the Tribunal: the complaint did not fall within the FOIA and there simply was no jurisdiction. That is what the IC confirmed in subsequent correspondence at the time.
31. It seems to me, nevertheless, that such a conclusion is potentially inconvenient in its consequence and immediately raises a question as to whether a purposive, if not literal, interpretation of the statutory provisions can legitimately avoid such a result. An appeal to the Tribunal would not require leave of any court; would be prospectively much more informal and would, normally, involve no exposure to legal costs (important considerations for applicants); would involve a panel having particular expertise; and further would be more "open-ended" under s.58 as compared to the traditionally more restrictive approach of the Administrative Court (which court also usually does not involve itself in resolving contested factual disputes). Various other potential anomalies also could arise if no appeal to the Tribunal lies in such a situation. These, as it seems to me and as it seemed to the Tribunal, are powerful reasons in favour of there being a right of appeal to the Tribunal in circumstances such as the present; and my initial instinct on first reading the papers was that that was intended to be so and should be so. For her part, Miss Carss-Frisk cited to me the case of Legal and General Assurance Society Ltd v Pensions Ombudsman and Others [2000] 1 WLR 524 as an example of a case where it was decided that Parliament had conferred – even at the expense of inconvenience – only a limited right of statutory appeal from decisions (that case being in a pensions context). Mr Sugar on the other hand cited an amount of authority to justify a purposive approach to correct what he would regard as the deficiencies in the FOIA on a purely literal interpretation.
32. Moreover if that were not so, one might have had the odd result – as the Tribunal understandably emphasised - that if the IC had decided that the Balen Report was held other than for purposes of journalism and had served a decision notice accordingly to the effect that the BBC had not dealt with the request in accordance with Part I then, as seems self-evident, the BBC could have appealed to the Tribunal under s.57, saying among other things that the decision notice was not in accordance with law (that is, appealing among other things on the point of jurisdiction). Miss Carss-Frisk accepted as much in argument. It seems most odd that such a challenge to jurisdiction on appeal to the Tribunal should not be available likewise on the converse case: although Miss Carss-Frisk was entitled to point out that in the other scenario put forward at least – and crucially, as she would say – there would have been a decision notice under s.50(3).
33. But matters, unfortunately, are not anything like as straightforward as that indicated simply by considerations of convenience. Section 50 requires by s.50(1) that the request has been made to a "public authority"; and by s.50(3) that the IC should either make a notification or serve a decision notice on receiving an application "under this section". But a "public authority" is defined to mean, in this context, a body which is listed in Schedule 1: see s.3(1); s.84. Part VI of Schedule 1 does not simply refer to "The British Broadcasting Corporation": it refers to "The British Broadcasting Corporation, in respect of information held for purposes other than those of journalism, art or literature". Moreover s.7(1) on the face of it expressly excludes the application of the entirety of Parts I to V of the FOIA in such a situation.
34. Mr Hooper and Mr Sugar nevertheless submitted that the closing words of s.7(1) – reflected also, they submit, in the wording of s.7(5) and (6) – in referring to "any other information held by the authority" linguistically connoted that such "other information" was being held by a public authority. They submitted that – notwithstanding (as Mr Hooper frankly said) the initial impression one otherwise might get from s.3(1) and Schedule 1 – s.7(1) showed that it was concerned with the application of Parts I to V to information, rather than purporting to define the circumstances in which a body was or was not to be treated as a "public authority" for the purposes of the FOIA. Mr Hooper queried why, if that was not intended to be so, Parliament had not used some other language such as: "Where a body is listed in Schedule 1 only in relation to information of a specified description that body shall not be a public authority for the purpose of this Act in relation to any other information held by that body". (I might add that, at one stage of his argument Mr Hooper also suggested that s.7(1) only applied to information and not to requests for information. In my view, however, that is not a tenable interpretation and is an unrealistically narrow reading of the subsection.) What Mr Hooper's overall submission, adopted by Mr Sugar, comes to – as, indeed, was the Tribunal's conclusion – is that it is particular information that is excepted by the derogation in Schedule 1 and by s.7(1) from the provisions of Parts I to V: not the public authority itself. Thus the BBC was a "public authority" for all purposes under the FOIA.
35. I do not, for myself, think that that interpretation as advanced by Mr Hooper and Mr Sugar fits at all well with the actual wording of s.7(1) when read in the context of s.3(1) and Schedule 1.
36. As Miss Carss-Frisk submitted, that interpretation, as advanced, in effect is tantamount to reading s.7(1) and Schedule 1 in the relevant respects as though they provide exemptions in respect of information otherwise required to be supplied. But exemptions, so far as public authorities are concerned, are provided for in s.2 and Part II of the FOIA: and those provisions, for good measure, do not (in contrast to s.7) entirely disapply Parts I to V to public authorities for the purpose of exemption nor do those provisions as to exemption deprive bodies of their status as public authorities for the purposes of Part I. Consequently, the IC could validly serve a decision notice under s.50(3) as to whether a request for information has been dealt with in accordance with the requirements of Part I, in a case where a claimed exemption is in issue. The applicable sections of the FOIA, in particular s.3(1) and s.7(1) taken with Schedule 1, are different. As I read them, they are specifying which bodies are to be treated as public authorities in respect of which types of information: they are not stating that the BBC (and those other bodies in respect of which the same drafting technique is used in Schedule 1) are public authorities for all purposes under the FOIA in relation to all information held by them, with certain exceptions or exemptions then imposed.
37. My reading of the statutory provisions, therefore, is that it is only in respect of information held by the BBC otherwise than for the purposes of journalism, art or literature that the BBC is a public authority subject to the requirements of Part I to V of the FOIA. In respect of information not so held the BBC is not a public authority subject to Parts I to V of the FOIA.
38. This overall interpretation (although in some respects inconvenient) is in fact not, as it seems to me, a senseless or purposeless interpretation nor one which obviously conflicts with the structure of the FOIA relating to appeals. It will be noted that, even where an application is duly made under s.50, there are circumstances as set out in s.50(2)(a) – (d) where the IC can decline to make a decision as to whether or not a request has been dealt with in accordance with the requirements of Part I: see s.50(3)(a). It was common ground before me that if in any particular case the IC formed such a view then there would be no right of appeal under s.57 and the only right of challenge would be by way of Judicial Review. It is true that the matters set out in (a)-(d) are not usually likely to be ones requiring any particular expertise. But they sometimes may raise intricate issues. In any event the point remains that the FOIA was not contemplating an appeal to the Tribunal from any determination of the IC as the sole remedy in all situations. The right of appeal to the Tribunal is therefore, on any view, in at least some respects limited by the express terms of the statute. Mr Sugar himself very fairly noted that in the original White Paper (paragraph 5.16) it was not contemplated that there be a right of appeal at all against a decision by the IC to order (or, as the case may be, not order) disclosure and thus it was impliedly contemplated at that time that any challenge should be by way of Judicial Review only. But be that as it may, one can at least see an intent in the words of the statute that the right of appeal to the Tribunal be limited and a purpose in a structure whereby the Tribunal is empowered only to deal with appeals relating to complaints which are themselves within the FOIA.
39. Mr Sugar did, in arguing that in the present case there must be a right of appeal to the Tribunal, suggest that s.56 would preclude a challenge to the decision of the IC by way of Judicial Review. But, in agreement both with Miss Carss-Frisk and with Mr Hooper, I do not think s.56, on its wording, operates to preclude a challenge by way of Judicial Review of a decision of the IC on such a point. In my view, that section is geared to prospective claims for breach of statutory duty.
40. Further, one can postulate an example whereby a person, genuinely but mistakenly, lodges a complaint expressly and purportedly under s.50 in respect of an individual or a body which on any view is not a public authority falling within the bodies listed in Schedule I. As Miss Carss-Frisk submitted and as Mr Hooper conceded, there must be an implied power available to the IC in such circumstances to decide to decline to accept it as a complaint under the section. But if that is so it is so on jurisdiction grounds. It confirms – contrary to the view taken by the Tribunal on this - that the FOIA did not intend every decision of the IC relating to complaints to be subject to appeal to the Tribunal; and that is then at least consistent with the FOIA also contemplating that the IC can properly refuse to serve a decision notice under s.50 in a case such as the present. In my view that concession also tends to confirm two other things. First, that the IC's powers, on receipt of a purported complaint, are not confined either to serving a decision notice under s.50(3)(b) or to declining to do so solely under s.50(3)(a); second, that the IC has power to decide whether a purported complaint under s.50(1) is indeed within the statutory remit of the IC. It may involve a difficult decision on the part of the IC in any particular case as to whether or not, for example, the information is held for purposes other than those of journalism, art or literature; but that is a rather different point.
41. Overall, therefore, as it seems to me, one can discern, from the language and structure of the FOIA, an intent that an appeal lies to the Tribunal where (but only where) it has been decided by the IC whether or not the requirements of Part I have been complied with by a public authority and where a decision notice has been served. Section 7(1) specifies circumstances where Parts I to V of the FOIA do not apply. If the IC decides that those circumstances subsist, there will be no decision notice under s.50(3)(b) (which is contained in Part IV) which the IC can serve; and in consequence there can be nothing which can be appealed to the Tribunal. The remedy is by way of proceedings for judicial review.
42. Mr Hooper conceded that, for there to be an appeal to the Tribunal under s.57, there must first have been served a decision notice under s.50(3)(b). I am not sure if Mr Sugar himself accepted the point. But in any case it seems to me, for the reasons I have given, that the wording of s.50 and of s.57 show Mr Hooper's concession to be correct. In my view, the "decision" referred to in s.50(2) and s.50(3)(b) clearly is referring back to the "decision" specified in s.50(1). So where then in this case is the decision notice to the effect that Mr Sugar's request had or had not been dealt with in accordance with Part I of the FOIA?
43. In my view there was no such decision notice here: just because the IC had taken the view that the BBC was not a public authority subject to Parts I-V of the FOIA for the purposes of Mr Sugar's request. Mr Hooper was mindful of the implications of his argument that if the BBC was a public authority within the reach of Parts I-V of the FOIA and if the complaint here was properly made under s.50(1) then the IC was positively required to ("shall") serve a decision notice under s.50(3). He accordingly submitted that the letter of 2^nd December 2005, on a proper interpretation, was such a decision notice. That is a bold submission, given that at the time the IC himself had positively considered that he had no jurisdiction to serve a decision notice and at the time and subsequently (for example in a reply dated 23 January 2006) was saying to the Tribunal that he had not served any decision notice. Mr Hooper accepted that in point of form the letter was against him. He in effect accepted that his argument involved the letter being a decision notice in spite of itself. But Mr Hooper submitted that, objectively and on its true construction, the letter was in substance a decision notice under s.50(3)(b) that Part I had been complied with: by its in effect saying that it was not necessary for the BBC in this case to comply with Part I. I admire the ingenuity of the argument. But, with respect, it seems to me to involve not just a contortion of the language used in the letter of 2 December 2005 but a distortion. On that basis it follows, as Miss Carss-Frisk neatly put it, the argument then necessarily becomes one that the Tribunal had jurisdiction to decide whether the IC should have served a decision notice. But that (quite apart from not being relief claimed in the proceedings) is contrary to the terms of s.57(1); and Mr Hooper, by his own argument, disclaimed any proposition that the Tribunal had such power. An appeal can only lie to the Tribunal where a decision notice under s.50(3)(b) has in fact been served.
44. I confess, all the same, that I do not find a conclusion on this whole issue altogether straightforward or clear-cut. As I have indicated, the conclusion advocated by Mr Sugar and Mr Hooper, and as found by the Tribunal, is manifestly convenient. But as against that the structure of the FOIA is on any view such as to preclude certain decisions of the IC from appeal to the Tribunal. Moreover, a decision as to lack of jurisdiction on the part of the IC to serve a decision notice (which notice under s.50 is a necessary precursor to an appeal under s.57) would be consistent with an approach to the effect that only complaints duly brought within the FOIA can be appealed to the Tribunal. That being so, I think the better course is to construe the words of s.3, s.7 and Schedule 1 as I find them. Doing that, I conclude that the BBC's submissions are well founded. The Tribunal had no jurisdiction to entertain any appeal.
45. Mr Sugar, however, also sought to invoke the provisions of Article 6 of the Convention in support of his argument. He cited to me Barry v France (App No 14497/89); Loiseau v France (App No 46809/99); and Donnadieu v France (App No 19249/02). He submitted that a combination of the IC's procedures and Judicial Review (if available) was not sufficient to satisfy Article 6. Mr Hooper did not associate himself with the argument. In my view it is not tenable. Mr Sugar has no personal interest in the Balen Report, in the sense that it does not relate to him personally, and he has no obvious civil right or independent right of a private nature with regard to it. In any event, under the FOIA he has the right, as I have held, to seek to have an adverse jurisdictional decision of the IC on his initial complaint reviewed by the court. In such circumstances, the authorities cited by him do not assist him. Article 6 is not in point.
46. Finally on the inconvenience argument, Miss Carss-Frisk said that the present situation arising was likely to be rare: because it was only a handful of public authorities (albeit extending to, for instance, the Bank of England and Channel 4, among others) which were identified in Schedule 1 as being public authorities for purposes of some categories of information but not for others. Mr Sugar, on the other hand, responded that in reality quite a significant number of requests would be likely to be directed at the BBC. He suggested that many such requests would be (and, as he says, have been) rejected by the BBC – as in his case – on derogation grounds and that the reality is that the BBC "self-certifies", as he put it. Mr Hooper in fact told me, on instructions, that so far the IC has received some 70 complaints with regard to the BBC. All this does not cause me to reach any different conclusion on the jurisdiction point.

Conclusion on Jurisdiction Issue

47. In the result, as indicated by me to the parties at the time of the hearing, I uphold the BBC's objection that the Tribunal had no jurisdiction. Accordingly, the BBC's further challenge to the correctness of the Tribunal's further decision that the Balen Report was held for purposes other than those of journalism, art or literature falls away. I therefore turn to Mr Sugar's own claim for Judicial Review challenging the validity of the IC's decision that the Balen Report was held for the purposes of journalism.

Judicial Review

48. Having considered the matter, I grant permission.
49. An initial point, however, did arise. After I had indicated my decision on the jurisdiction issue, I queried the position with regard to Mr Sugar's judicial review claim. My thinking was that plainly things had greatly moved on since Mr Sugar's original request. Much more evidence had become available – as shown by the hearing before the Tribunal – and the original decision of the IC, based on the information then before the IC, would seem to be (now) so much water under the bridge. Moreover, as was common ground, Mr Sugar was not precluded from lodging a fresh request with the BBC and then, if it were rejected, complaining again to the IC: who could then reconsider the matter in the light of the materials now available. Indeed Mr Sugar has in the meantime made a further request and, on 18^th April 2006, a further complaint. Mr Hooper, picking up on that observation of mine, then submitted that I should refuse permission for this claim for Judicial Review without more ado. Mr Sugar disagreed. He said that he had had no prior notice of this point being taken, that he had come prepared to argue what he said were the important issues arising in his claim and that the approach – wrong approach, as he would submit – evidenced in the IC's original decision letters of 24^th October 2005 and 2^nd December 2005 was likely to resurface. I thought, in the circumstances, that it would not be fair to preclude Mr Sugar from arguing his claim.
50. In his original Grounds Mr Sugar sought to invoke Article 6 for the purposes of his Judicial Review claim. However he disclaimed that subsequently. He also in terms accepted that the process before the IC was not to be regarded as a judicial or quasi-judicial inquiry.
51. Mr Sugar did, however, raise complaints as to the fairness of the procedure adopted by the IC. He says that he was not sufficiently informed of the BBC's case as made to the IC so as to be able effectively to challenge it; that he did not receive sufficient information as to the use to which the BBC had put the Balen Report; and, generally, that he was not treated on an equal footing with the BBC. He also at one stage said that the decision did not sufficiently give reasons for rejecting his points, although ultimately he abandoned that, as well as other points raised in the grounds as to alleged unfairness.
52. In my view, there is nothing in any of this. The correspondence shows that the IC sought information from the BBC and Mr Sugar. The IC let each side know in general, but sufficient, terms what was being said. His draft conclusions were fully reasoned and sent out to each side for any further comment. It is surely significant that Mr Sugar by e-mail of 6^th November 2005 indicated that he did not wish to put in more submissions and did not complain that he was not sufficiently informed. It is to be stressed that there are no Rules applicable to the IC. It must have been contemplated that the IC would seek, so far as possible, to act speedily and informally. One can accept that the IC is under a broad duty to act fairly. In my judgment, he did so here.
53. At one stage in his argument Mr Sugar submitted that the BBC owed a duty of candour in the investigation by the IC and a duty to provide evidence of use of the Balen Report to the IC so that, in turn, Mr Sugar could consider it. He said in effect that in a case of this kind all, or most, of the cards were in the hands of the BBC and the cards should be on the table. He referred to a number of authorities in this regard, including, among others, R v Lancashire CC, ex p. Huddlestone [1986] 2 AllER 941 at p946; and R v Leyland Magistrates, ex p. Hawthorn [1979] 1 AllER 209. But these do not, in my judgment, avail him in this context. The BBC is not, and is not in a position analagous to, a prosecuting authority. Nor was this a judicial proceeding. Further no civil, personal rights of Mr Sugar were the subject of this investigation by the IC. It was for the BBC to decide, in its judgment, what materials and arguments it sought to advance to the IC and for the IC to assess them – if necessary, requesting the BBC to provide supplemental information (as indeed the IC did during the correspondence in this case). I can accept that matters might stand on a different footing if there were bad faith on the part of the BBC. But Mr Sugar expressly disclaimed such a suggestion. In any case, nothing in the materials before me indicated any want of candour on the part of the BBC in its dealings with the IC; nor did Mr Sugar make any such complaint at the time. In my view, no procedural unfairness or breach of natural justice is shown to have occurred in this case.
54. The next – and perhaps fundamental – point raised by Mr Sugar was the assertion that the decision of the IC could not stand because it was based on an error of law. He submitted, as he had submitted to the IC and subsequently to the Tribunal, that the "derogation" relating to the BBC provided for in Schedule 1 was simply not capable of applying to a report such as the Balen Report (a submission of principle which, it may be observed, the Tribunal itself had also rejected). He submitted that the IC, in his decision letters, had adopted much too broad a meaning of the phrase "for the purposes of journalism" and of the scope of the statutory derogation. He raised points as to the definition of the word "journalism" and the words "for the purposes of". He also submitted that no balancing exercise with regard to the public interest arises here such as might arise under (for example) s.36 of the FOIA. Rather, he said, the question is of the application with regard to the requested information of a settled interpretation of the words "for purposes other than those of journalism". He warned against the obligations of the BBC under the FOIA being "neutered". He went on to submit that it could not be the case that a report which was essentially the product of an internal inquiry such as this was within the derogation: the derogation being (in the context of journalism) designed to cover, for example, editorial outtakes, sources of information and so on, so he submitted, but not the management of journalism.
55. In my judgment, however, that is an unjustifiably narrow approach. The phrase "for purposes other than those of journalism …" has to be looked at compendiously. The word "journalism" no doubt does have, if taken on its own, a reasonably clear meaning, even if any one definition may be elusive. (As for the words "art" and "literature" - which, as is common ground, are not in truth relevant in this case - these are, notoriously, much less susceptible of definition.) I agree with the submissions of the BBC that journalism extends to (journalistic) activity as well as (journalistic) product. In my view, journalism at least extends to the processes of collecting, analysing, editing and communicating news. That, moreover, at least in the context of considering what is "for the purposes of journalism", is not necessarily – though sometimes it may be – distinct from assessment, quality control or management processes, whether concurrent or subsequent, directly relating to the collecting, analysing, editing, and communicating of such news. (Conversely, I might add the BBC cannot argue that, just because much of its entire business in essentials relates to gathering and disseminating news, all information held by the BBC is necessarily within the derogation: otherwise, indeed, the inclusion of the BBC in the way specified by the language of s.7 and Part VI of Schedule 1 would be pointless). As to the words "for the purposes of" those words – although not the same as, for example, "in connection with" – are words, in my view, capable of having a wide import. Moreover those words connote at least some subjective element on the part of the holder of the information: even if the ultimate assessment of whether or not information is held for the purposes of journalism (or, more accurately, "held for purposes other than those of journalism …") is an objective exercise in itself.
56. Mr Sugar submitted at one stage that – given that, as was agreed, the Balen Report was not in itself to be regarded as journalism – a review (such as the Balen Report) of past broadcast output simply could not be for the purposes of journalism and could not be the kind of information capable of falling within the derogation. I cannot accept – any more than the IC or, subsequently, the Tribunal could accept – such a proposition. A "review of past broadcast output", as Mr Sugar styles it, commonly may have a future purpose: for example, in enhancing quality, reliabity and objectivity of future journalistic product or activity. In my view it is certainly capable of being created (and, in appropriate circumstances, thereafter held) for the purposes of journalism.
57. In my view whether a piece of information is or is not "held for purposes other than those of journalism" (or, as the case may be, "art" or "literature") ultimately involves a matter of judgment on the part of the IC by reference to the circumstances of each case. In the present case the determination of the IC would, on the view I take, have the effect of establishing whether or not there was jurisdiction to decide substantively on Mr Sugar's complaint and to serve a decision notice. But it does not follow that the issue of derogation is one of unequivocal, bright-line interpretation: rather, in my view, it calls for an assessment of whether the conclusion was within the range of reasonable judgments. Questions of fact and degree can arise. In my judgment, and in agreement with Mr Hooper's submission on this, the applicable approach here is that indicated by the House of Lords in R v Monopolies and Mergers Commission ex p. South Yorkshire Transport Limited [1993] 1WLR 23. That case involved a consideration of s.64(3) of the Fair Trading Act 1973, and in particular the phrase "a substantial part of the United Kingdom". Lord Mustill pointedly declined to offer his own test "because it would substitute non-statutory words for the words of the Act which the Commission is obliged to apply, and partly because it is impossible to frame a definition which would not unduly fetter the judgment of the Commission in some future situation not now foreseen" (p31H-32A). He then went on to summarise the argument and his conclusion on it in his speech (with which the other members of the House agreed) in these terms:

"The respondents say that the two stages of the Commission's inquiry involved wholly different tasks. Once the Commission reached the stage of deciding on public interest and remedies it was exercising a broad judgment whose outcome could be overturned only on the ground of irrationality. The question of jurisdiction, by contrast, is a hard-edged question. There is no room for legitimate disagreement. Either the Commission had jurisdiction or it had not. The fact that it is quite hard to discover the meaning of section 64(3) makes no difference. It does have a correct meaning, and one meaning alone; and once this is ascertained a correct application of it to the facts of the case will always yield the same answer. If the Commission has reached a different answer it is wrong, and the court can and must intervene.

I agree with this argument in part, but only in part. Once the criterion for a judgment has been properly understood, the fact that it was formerly part of a range of possible criteria from which it was difficult to choose and on which opinions might legitimately differ becomes a matter of history. The judgment now proceeds unequivocally on the basis of the criterion as ascertained. So far, no room for controversy. But this clear-cut approach cannot be applied to every case, for the criterion so established may itself be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case. In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational: Edwards v Bairstow [1956] AC 14. The present is such a case. Even after eliminating inappropriate senses of "substantial" one is still left with a meaning broad enough to call for the exercise of judgment rather than an exact quantitative measurement. Approaching the matter in this light I am quite satisfied that there is no ground for interference by the court, since the conclusion at which the commission arrived was well within the permissible field of judgment."

58. In my view, that is likewise so here: not least because to seek judicially to define, as a matter of interpretation and in vacuo, the meaning of the phrase "held for purposes other than those of journalism, art or literature" – which the FOIA itself conspicuously has not sought to define - seems to me to be both an impossible and a futile exercise. The context and circumstances in which the issue arises need to be considered; and by reference to the factual situation in each case, the matter becomes one of assessment and judgment, albeit an assessment or judgment potentially capable of being challenged on public law grounds. The assessment – even though it might involve a decision on whether there was a complaint in respect of which the IC could serve a decision notice as to whether or not the requirements of Part I had been complied with – was an assessment for the IC to make: cf. Wade & Forsyth 9^th edition at p.257ff. I have decided to give leave to Mr Sugar to expand on this point by way of amendment. I do so because it is linked to his overall argument and because there is no prejudice to the respondents in allowing it to be so raised, albeit late in the day. But even so in my view his further attempt to style the interpretation of the phrase "for purposes other than those of journalism, art or literature" as, in effect, a hard-edged "jurisdictional fact" (as he put it) and as one on which the court is free or bound to reach its own conclusion afresh is incorrect.
59. The question then is whether the decision of the IC in this case was a lawful and rational one, properly open to him on the material before him.
60. In my judgment, it was.
61. The IC's unequivocal conclusion in his decision letter was that the Balen Report was held for the purposes of journalism, art or literature. The IC set out comments on the purpose of the derogation which in my view cannot validly be criticised. Nor, in my view, can there be any valid criticism of the conclusion that the terms "journalism", "art" or "literature", as used in the FOIA, are capable of being broad – a viewpoint with which, in fact, I myself agree. The IC then correctly directed himself that in essence the issue was whether the Balen Report was "held for the purposes of journalism". He posed several criteria – all, in my judgment, properly assessed as relevant to that issue. One was the relationship between the Balen Report and Programme Content (which latter was agreed to be within the journalistic derogation). The IC found there to be a direct relationship. Mr Sugar challenged that finding; but it was a finding open to the IC. The IC then found that, although the Balen Report reviewed programmes that had already been produced and broadcast, the Creative Journalistic Purpose (as defined) was still present: because the Balen Report contained suggestions and ideas that might enhance journalistic standards in future productions of Programme Content (as defined); and the IC also found that the raison d'être of the report was to promote and develop the Programme Content. These were findings open to him. He went on further to find, in assessing what he called "the multi-purpose criterion", that the Creative Journalistic Purpose was "manifestly" the dominant purpose; that the origins of the Balen Report supported that; and that the "primary constituency" to benefit from the report were "journalists". All these findings led to the conclusion that the Balen Report was "held for the purposes of journalism".
62. What is wrong with any of this, as a matter of assessment? Mr Sugar advanced a number of criticisms (although he abandoned some points, including a point to the effect that the derogation was to be circumscribed solely by reference to Article 10 of the Convention):

i) First, Mr Sugar said that the decision letters had wrongly assumed that if the Balen Report had been created for the purposes of journalism then it was held for the purposes of journalism. But there is nothing in the letters to lend support to that criticism.

ii) Second, Mr Sugar complained that the IC wrongly found that the Balen Report had the Creative Journalistic Purpose as the "manifestly dominant purpose": but its true (and distinct) purpose, Mr Sugar again submitted, was, by way of retrospective review, simply the management of journalism. But that was the viewpoint Mr Sugar had advanced at the time. The IC was entitled, on his assessment of the circumstances of this case, to reject it. The IC is not shown, in my judgment, to have misunderstood or misapplied the then available information or the extent of the derogation set out in Schedule 1 in this regard.

iii) Third, Mr Sugar complained that if there was more than one purpose, or if there were mixed purposes, for which the Balen Report was held then the Balen Report could not be held "for the purposes of journalism". In my view, that approach would be virtually unworkable in practice. In any event it simply is not called for by the language of the words of Schedule 1 relating to the BBC. Nor would it fit with one clear broad underlying purpose of the FOIA, viz. in protecting freedom of journalistic expression for public media authorities such as the BBC. Mr Hooper and Miss Carss-Frisk were in fact content with the application of a "dominant purpose" test as applied by the IC (and also by the Tribunal). Given that, I need not express any view of my own as to whether or not some lesser degree of journalistic purpose (provided that it was a significant purpose) might suffice.

iv) Fourth, Mr Sugar made criticisms of the IC's findings as to "direct purpose". In fact what the IC had found was a direct relationship between the Balen Report and Programme Content, for reasons which were rational. In truth, this ground was really a variation on Mr Sugar's principal theme that the Balen Report was, as he asserted, held for management, not journalistic, purposes – an assertion rejected by the IC on the information before him. In this regard, Mr Sugar again maintained that the Balen Report was (simply) a review of already broadcast journalism and was not directed to any specific new planned broadcast: consequently, he said, it could not be within the derogation. But not only does this involve, as I have indicated, an unduly narrow approach to the adopted phrase "for the purposes of journalism" it also involves the making of factual assumptions – which the IC rejected.

v) Finally, Mr Sugar asserted that the IC had no basis for concluding that the primary users of the Balen Report were journalists. In fact the IC did not make an express finding that the primary users of the Balen Report were journalists: rather he held that journalists were "the primary constituency to benefit" because "the report goes to the very essence of their profession". Again, as it seems to me, this was a view the IC was entitled to reach. (It is to be noted that the IC had also stated that had he concluded the primary users were managers then he would be inclined to conclude that the Balen Report was not held for the purposes of journalism. But he did not so conclude: and, as I consider, that was open to him on the information then before him.) In my view, an approach among other things asking, in a context such as the present, who are likely to be the "beneficiaries" of the holding of a piece of information is a valid and useful one. I do not see why the approach should be circumscribed by considering as "users" solely those who will be likely actually to see the information in question: which is what Mr Sugar at one stage seemed to suggest.

63. In my judgment therefore none of the grounds advanced in paragraph 4 of the Grounds of Claim show any error or unreasonableness on the part of the IC. I do not go into any more detail expressly in this judgment into the various permutations of these Grounds as set out in paragraph 4 of the Grounds of Claim or as argued, although I have considered them, because I do not think it necessary to do so.
64. The final grounds advanced in paragraph 5(a)(b)(c) of the Grounds of Claim all revolved around the proposition that the IC was wrong to maintain his subsequent "reaffirmations" (as they were styled by Mr Sugar) of his decision of 2^nd December 2005 as to the purposes for which the Balen Report was held, in the light of the evidence that emerged in the course of the appeal proceedings before the Tribunal.
65. This is misconceived. The asserted "reaffirmations" were not decisions of any relevant kind challengeable by way of judicial review: they were, as pointed out by Mr Hooper, simply the IC restating and justifying, in the context of the appeal to the Tribunal, the position the IC had earlier adopted in his decision letter of 2^nd December 2005. The fact is that the IC had by then made his decision. His task was then over. Indeed, Mr Sugar implicitly himself had proceeded on that footing, just because he had embarked on an appeal to the Tribunal. It seems to me most odd that the matter can nevertheless be said to be liable to be kept under continuing review by the IC once the matter was being taken to the Tribunal. Yet, the argument – as reflected by Mr Sugar seeking leave to amend on this – connoted that the IC was under a continuing duty of review. But (a) such a suggestion would be administratively unworkable – and is the asserted duty open-ended? (b) such a suggestion finds no support in the language or structure of the FOIA (c) such a suggestion is not justified by considerations of fairness: since a person can always, in the light of fresh evidence or a change of circumstances, make a fresh request and, as the case may be, fresh complaint to the IC (d) for good measure, in this case the IC could not, as I see it, be required continually to review, given that the evidence before the Tribunal was unfolding and given that the IC could not necessarily anticipate the view, or himself be required to take the view, that the Tribunal eventually did.
66. Finally Mr Sugar sought to raise by amendment a point that the IC's decision had been tainted by a mistake of fact, giving rise to unfairness, such that it should be quashed. Reliance was place on E v Secretary of State for Home Department [2004] QB 1044; [2004] EWCA Civ 49. Mr Sugar placed particular reliance, as I understood him, on the evidence adduced before the Tribunal as to who the "users" of the Balen Report were and, as I understood him, on the Tribunal's conclusion that, after 9^th November 2004, the Balen Report was held not for the purposes of journalism but for wider purposes of strategic policy and resource allocation (which, as Mr Sugar would seek to say, lie outside the scope of the derogation).
67. Mr Sugar's proposed ground of amendment was by no means specific as to the mistake he alleges to have occurred: although I understood it, from his argument, to be directed primarily at the question of users, leading thereby to the argument as to the purpose for which the Balen Report was held. But in any event it does not seem to me that the asserted mistake of fact can be said to be established as being uncontentious and objectively verifiable (see para 66 of the judgment in E). In that regard, Miss Carss-Frisk cited to me selected extracts from the evidence before the Tribunal to show that, as she asserted, the Tribunal had gone "badly wrong" in drawing such a sharp distinction between strategic purposes and journalistic purposes and in its assessment of the evidence. That Mr Sugar cited to me extracts of evidence to the contrary tending, as he submitted, to support the Tribunal's view seemed to me only to reinforce the view that this was and is a contentious issue. Further, there may also be a question, if there had been some mistake as now said, as to whether that would have been likely to have had a material impact on the IC's decision – which, as I have indicated, was one involving judgment and assessment.
68. In all the circumstances, my view is that an argument based on mistake of fact does not run.

Conclusion on Judicial Review Claim

69. In the result my conclusion on this claim for judicial review by Mr Sugar is that:

i) Permission should be granted.

ii) Leave to amend the claim is granted in respect of adding proposed new Ground 7, as set out in paragraph 30 of Mr Sugar's skeleton argument dated 19^th March 2007; but is refused in respect of proposed Grounds 6 and 8, as being not realistically arguable.

iii) This claim for Judicial Review (as amended) fails and is dismissed. The decision of the IC was lawful, was rational and was properly open to him.

70. I add this. I have granted permission, for the reasons I have already given. But even if I had thought that there were aspects of Mr Sugar's claim for judicial review which were well-founded I would not, in my discretion, have granted relief, whether by way of declaration, quashing order or otherwise. This is because, notwithstanding Mr Sugar's assertions to the contrary, the decision of 2^nd December 2005 has in truth been overtaken by events and by the significant amount of fresh evidence since adduced. I revert to what I have said earlier. There could be (indeed has been) a fresh request and a fresh complaint by Mr Sugar to the IC. Besides, if it be relevant and as is evident from his arguments on mistake of fact, Mr Sugar in reality perceives the subsequently adduced evidence as potentially helpful – not harmful – to his cause. There is no obvious benefit to him factually in simply reverting to the historic position as it was on 2^nd December 2005. To grant remedies by reference to a decision made in now outmoded circumstances seems to me to be an arid and academic exercise. It is not something that, as an Administrative Court judge, I would have been minded to do.
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MR JUSTICE DAVIS: Judgment will be given in accordance with the written judgment now handed down.

MISS CARSS-FRISK: My Lord, I hope you may have seen a draft order that was prepared --

MR JUSTICE DAVIS: I had seen it. It is still on my desk.

MISS CARSS-FRISK: I have a spare copy.

MR JUSTICE DAVIS: Thank you.

MISS CARSS-FRISK: That has now been agreed by the Information Commissioner and I understand by Mr Sugar, subject to the question of permission to appeal.

MR JUSTICE DAVIS: Yes.

MISS CARSS-FRISK: I hope that accurately reflects your Lordship's intention.

MR JUSTICE DAVIS: I think when I looked at it it seemed to be. That is agreed, just the form of the order, Mr Sugar?

MR SUGAR: My Lord, I am afraid there is a point which I would like to raise with my Lord.

MR JUSTICE DAVIS: On the order itself?

MR SUGAR: On the order itself.

MR JUSTICE DAVIS: Not relating to permission to appeal?

MR SUGAR: It is indirectly related to permission to appeal.

MR JUSTICE DAVIS: Anyway, the form of order is agreed. Do you want to go on to the permission to appeal and then we can deal with it then?

MR SUGAR: The first point in the order, my Lord --

MR JUSTICE DAVIS: All right.

MR SUGAR: -- which is the allowing of the appeal, obviously assumes that the appeal was a valid appeal, as opposed to the BBC's JR against the Tribunal. The point I wanted to raise with you was that on one construction of the statute there is no right to appeal from a preliminary issue of the Information Tribunal, a provisional decision of the Information Tribunal.

MR JUSTICE DAVIS: Was that argued before me last time?

MR SUGAR: It was not, because it did not seem to me that it was significant. Its significance now is that if you make the order in the terms of the draft, then it is clear that I would need to go to the Court of Appeal for permission in relation to the jurisdiction point.

MR JUSTICE DAVIS: Yes.

MR SUGAR: Whereas if the order is not made in the terms of paragraph 1, then you would have the right to give permission to appeal and furthermore the test is somewhat different.

MR JUSTICE DAVIS: You mean the only order I can make on the jurisdiction issue is by reference to the judicial review alternatives of Miss Carss-Frisk.

MR SUGAR: That is my argument.

MR JUSTICE DAVIS: I am not sure I agree with it. Thank you.

MISS CARSS-FRISK: My Lord, our recollection is that your Lordship mentioned at the beginning of the hearing that unless someone took any point on it we would proceed on the basis that it was open to ask to appeal the Tribunal's decision on jurisdiction.

MR JUSTICE DAVIS: I think at that stage it was purely a procedural point because it did not affect the substance of the argument at all. But all I can say is my present view is that the Tribunal did make a decision which you have said is erroneous in law. When the High Court makes a decision which it has no jurisdiction to make you can appeal to the Court of Appeal against that decision, even though it may be ex hypothesi or one made without jurisdiction.

MISS CARSS-FRISK: And section 59 --

MR JUSTICE DAVIS: Is a point of law --

MISS CARSS-FRISK: -- is a broadly drawn section. So in our submission either it has implicitly been dealt with by your Lordship or Mr Sugar's point I am afraid is wrong.

MR JUSTICE DAVIS: But in any event I am not sure that point necessarily need affect the substance of whether or not permission to appeal should be granted.

MISS CARSS-FRISK: It would do of course in the sense that under CPR 52.13 --

MR JUSTICE DAVIS: Yes.

MISS CARSS-FRISK: -- page 1156 of the 1997 version of the White Book, and I think this is Mr Sugar's concern.

MR JUSTICE DAVIS: Yes, it had crossed my mind.

MISS CARSS-FRISK: It would be a second appeal to the Court of Appeal, which is something that the Court of Appeal itself only can deal with in terms of granting permission. I probably should not say anything more at this stage unless and until your Lordship says you do feel you have jurisdiction to grant permission to appeal. It seems to us fairly clear you do not, on the analysis that this was an appeal.

MR JUSTICE DAVIS: Just before I hear Mr Sugar, on the footing that there was here a decision by the Information Tribunal which was appealable as raising a point of law, and I have given my decision on that --

MISS CARSS-FRISK: Yes.

MR JUSTICE DAVIS: -- does the fact that the Information Tribunal has made a decision mean that this is now a second stage, or do I look at it in terms of what a court has done?

MISS CARSS-FRISK: I think --

MR JUSTICE DAVIS: This is not a second stage court hearing.

MISS CARSS-FRISK: I think the analysis would be that because -- on that basis the hearing before you was an appeal to the High Court --

MR JUSTICE DAVIS: Just take me to the words of the White Book, would you, Miss Carss-Frisk?

MISS CARSS-FRISK: Yes. Page 1556, CPR 52.13.

MR JUSTICE DAVIS: Which White Book are you looking at?

MISS CARSS-FRISK: I am looking at the 2007.

MR JUSTICE DAVIS: I am afraid the High Court does not run to expenditure of an up-to-date volume. I am sorry about.

MISS CARSS-FRISK: I only just got it yesterday. Anyhow, CPR 52.13.

MR JUSTICE DAVIS: Sorry, CPR 52...?

MISS CARSS-FRISK: Point 13.

MR JUSTICE DAVIS: I am sorry. I simply have not had time this morning to look into the point myself, having come up from Wales. Yes, which...?

MISS CARSS-FRISK: So paragraph --

MR JUSTICE DAVIS: Second appeals to the court.

MISS CARSS-FRISK: Yes:

"Permission is required from the Court of Appeal for any appeal to that court from a decision of a county court or the High Court which was itself made on appeal."

MR JUSTICE DAVIS: "Which was itself made on appeal." Yes, I have had this in the planning context where it has been said if it is an appeal from.... It does not say "on appeal from a lower court", it says just "on appeal".

MISS CARSS-FRISK: Yes, and this would of course then be an appeal against the Tribunal to this court under section 59 of FOIA, so that a further appeal to the Court of Appeal would therefore be a second appeal, and it is pretty clear that therefore that is for that court to decide whether permission should be granted.

MR JUSTICE DAVIS: It does not apply to Mr Sugar's judicial review claim though?

MISS CARSS-FRISK: No.

MR JUSTICE DAVIS: That is first time round. So on any view I have jurisdiction on that.

MISS CARSS-FRISK: You do if permission is sought on that, yes.

MR JUSTICE DAVIS: It is just you might think there is a relationship between the two matters.

MISS CARSS-FRISK: Actually, not really, in the sense that of course --

MR JUSTICE DAVIS: Well strictly logically you are right. But in the real world, is there not a relationship? No.

MISS CARSS-FRISK: Not really, because the point that we would want to take to the Court of Appeal is of course a very distinct point on jurisdiction and the Commissioner's jurisdiction and then the Tribunal's jurisdiction. We would say once you have decided, if you have decided, that it was an appeal to this court then there is in our submission no doubt at all under 52.13 that it is for the Court of Appeal alone to decide about permission to go to it on appeal. I do not think Mr Sugar disputes that. In fact he is nodding, I can see now.

So if that is the position, then there is really no question about permission to appeal for you on that point. If there were a question for you to decide on permission to appeal on jurisdiction, we would say because in effect on any view the hearing before you was an appeal from another judicial body that had already looked at the matter, it should be treated at any rate as if in effect the Court of Appeal would be hearing a second appeal. But that is a rather different point. The strict legal position is in our submission clear that it really is for the Court of Appeal to look at that.

MR JUSTICE DAVIS: Okay. So you are saying I should not grant permission, and indeed you are saying I cannot grant permission.

MISS CARSS-FRISK: I am saying you cannot grant permission, but if you think you can then you should not, given the strictness of the test: an important point of principle or practice. Of course we are not suggesting there is not importance in this jurisdiction point, but set in the context and bearing in mind the strictness of that test, which we would say you should apply by analogy in any event --

MR JUSTICE DAVIS: The strictness of what test?

APPLICANT COUNSEL: About it raising an important point of principle or practice, which you see in paragraph (2) of 52.13 is the test that the Court of Appeal.

MR JUSTICE DAVIS: An important point of principle is not so far away, is it, I think if I have power, some compelling other reason, something like that, under (b). You know, a point of statutory interpretation which has implications going perhaps wider than this case s, is it an unworthy thought to think that some people might be interested?

MISS CARSS-FRISK: I would not suggest it has not some implications of that kind, but just ask you to bear in mind that it does appear it is intended to be a strictly applied test, and here we have in effect had the Information Tribunal considering it already, and now you having dealt with it really on the basis of the clear wording -- the ordinary meaning of the statute. But our fundamental point is it is for the Court of Appeal.

MR JUSTICE DAVIS: The score is one and a half each at the moment, is it not? The Commissioner was half with you and then changed his mind and was half the other way --

MISS CARSS-FRISK: Yes.

MR JUSTICE DAVIS: -- but the Information Tribunal was against you, and then I am with you.

MISS CARSS-FRISK: My Lord --

MR JUSTICE DAVIS: And the Information Commissioner and the Information Tribunal are people who are meant to be experienced in applying these things.

MISS CARSS-FRISK: I am not want to take up too much time.

MR JUSTICE DAVIS: All right.

MISS CARSS-FRISK: The fundamental point is really it for the Court of Appeal to decide.

MR JUSTICE DAVIS: I will decide that.

Mr Sugar you go next, then Mr Hooper after you, would that be best?

MR HOOPER: My Lord.

MR SUGAR: My Lord, the point on the -- whether the appeal is a valid appeal is not about whether the Tribunal made a decision. I quite accept the Tribunal made a decision, and I think the fiction that it was a legal nullity, that is not my argument. My argument is that on the statute the right to appeal from the Information Tribunal is limited to a right of appeal from a final decision of the Tribunal and does not include a right to appeal --

MR JUSTICE DAVIS: Now let us just --

MR SUGAR: -- from a preliminary decision.

MR JUSTICE DAVIS: Can we just go back to -- it is section 59, is it not?

MR SUGAR: It is my Lord. I think you need to read 58 and 59 together.

MR JUSTICE DAVIS: Yes.

MR SUGAR:

"(1) If on an appeal under section 57 the Tribunal considers -

(a) that the notice against which the appeal is brought is not in accordance with the law, or

(b) to the extent that the notice involved an exercise of discretion by the Commissioner, that he ought to have exercised his discretion differently,

the Tribunal shall allow the appeal or substitute such other notice [these are decision letters about the Tribunal decision notices -- sorry, IC decision letters] as could have been served by the Commissioner; and in any other case the Tribunal shall dismiss the appeal."

So the context there, I think, is that there has been a determination of the whole case by the Tribunal. And when you go on to 9 it says:

"Any party to an appeal to the Tribunal under section 57 may appeal from the decision ..."

MR JUSTICE DAVIS: "The decision", not "a decision".

MR SUGAR: My Lord, this is exactly the point which was dealt with by Lightman J in the Legal and General case to which Miss Carss-Frisk drew your attention and in which --

MR JUSTICE DAVIS: So it is the bitter bit, because Miss Carss-Frisk appeared in that case, did she not?

MR SUGAR: She did. So that is my argument on this matter. As to the....

MR JUSTICE DAVIS: Right.

MR SUGAR: As to the question of the test, I suggest my Lord that once you have decided whether the appeal -- the point on 58/59 on the preliminary issue matter, then you should approach the question of whether or not to grant permission entirely in accordance with the normal rule and not by reference to the Court of Appeal rule. That is not normal practice, it simply a question -- the simple question is whether you think there is a reasonable prospect.

MR JUSTICE DAVIS: Or there is some other compelling reason. I suspect you might say there is both here.

MR SUGAR: With that I would. I think it is probably easier is the first point, since, as you put in your judgment --

MR JUSTICE DAVIS: Can I just tell you -- I have to say on that aspect you are pushing at an open door on what I might call the question of the statute. But what does trouble me on the jurisdiction is that the rather fact-specific instances, where here in this case was there a decision notice by the IC? That is different from the -- it is related to the statutory interpretation point, but it does not seem to me a very (inaudible), it is just in this particular case there has been no decision notice, as I found, and it is simply a question of interpretation of the letter; it is not a question of interpretation of the statute.

MR SUGAR: I would argue, my Lord, that had you found that the literal construction of the statute should be displaced by a purposive one, if I can put it in those terms, because of the consequences and as you said in your judgment you found it very odd the consequences, then I think you would have found a way to deal with the form point, as indeed the Tribunal did.

MR JUSTICE DAVIS: As the Tribunal did.

MR SUGAR: The substance of the matter was the statutory construction in terms of substance rather than the form of the decision notice, I submit.

MR JUSTICE DAVIS: It still troubles me that that means interpreting the letter in a way which is precisely contrary to what the IC thought he was doing at the time.

MR SUGAR: The IC was unconcerned about that, my Lord, and indeed was anxious that if he had a duty to issue a decision notice, that even though it didn't look like one it should be treated as one.

MR JUSTICE DAVIS: That is what he ultimately sad. But at the time he saying, "I have not served a decision notice, indeed I cannot serve a decision notice", that is what he was saying.

MR SUGAR: That is true.

MR JUSTICE DAVIS: It seems to me somewhat bizarre -- well, I do not want to repeat what I said in my judgment.

On your judicial review claim, do you seek permission?

MR SUGAR: I do.

MR JUSTICE DAVIS: I clearly do have jurisdiction.

MR SUGAR: Indeed, I do. I do not know how much you want me to say on that subject.

MR JUSTICE DAVIS: Can I just tell you again my initial thoughts. I have to say I think some of the points you raise simply are not arguable. The point that strikes me as potentially arguable is the interpretation of "for the purposes of journalism" leading on to the application of the South Yorkshire principle.

MR SUGAR: That is the most --

MR JUSTICE DAVIS: That is the point that strikes me as potentially arguable. I have to say your other points about fairness and reaffirmations did not impress me very much, I am sorry to say.

MR SUGAR: That was clear from your judgment.

MR JUSTICE DAVIS: Now which grounds do you seek to renew on that?

MR SUGAR: Certainly on the main construction issue.

MR JUSTICE DAVIS: "For the purposes of journalism" and South Yorkshire?

MR SUGAR: And the extent to which South Yorkshire should be distinguished. I did not actually make it very much in argument, there is much more I would like to put in the appeal to the Court of Appeal on that, if I do indeed decide to proceed. I should say that I have by no means decided whether or not I shall in fact proceed.

MR JUSTICE DAVIS: No, I quite understand you want to consider this.

MR SUGAR: There is one other point on which I fear that the inadequacy of my own advocacy did not manage to convey my point to you adequately, which is the E v Home Secretary point. You dismissed that point on two grounds, the first being that there was not an uncontrovertible fact. The uncontrovertible fact which I wish to rely upon was that the Balen Report had gone to the Journalism Board, a fact which was not known to the Information Commissioner, incontrovertibly my Lord.

MR JUSTICE DAVIS: Now you really are departing from what you said last time.

MR SUGAR: I have -- that is what was in my mind. I have failed to convey --

MR JUSTICE DAVIS: I think indeed my recollection is that either Mr Hooper or Miss Carss-Frisk or both said you have been a bit unclear in saying what the mistake in that was.

MR SUGAR: They did.

MR JUSTICE DAVIS: My clear recollection, indeed it is in my note book if I look at it, you said it is the users. That is what you said to me.

MR SUGAR: I have failed to --

MR JUSTICE DAVIS: I am absolutely confident of that and it will be in my notebook if I look it up.

MR SUGAR: I have failed to convey my point. The essence of this case as I see it, the contradiction between the Information Commissioner's position and the Information Tribunal's position is precisely about this point. The Information Commissioner did not know that this matter had gone up to the Senior Journalism Board whereas the Information Tribunal did know, and that is the crux of why they came to different conclusions.

MR JUSTICE DAVIS: That then leads me perhaps into another point, which is what I say in the last paragraph of my judgment, that even if I had thought that some of your points were arguable that the whole thing is now academic.

MR SUGAR: My Lord, I would wish to argue in relation to that that --

MR JUSTICE DAVIS: There are no costs implications here, which means that --

MR SUGAR: I would wish to argue in relation to that point two things.

MR JUSTICE DAVIS: Yes.

MR SUGAR: The first is that if that is right, then the judicial review of the Information Commissioner's decision, the ability to judicially review it, is illusory.

MR JUSTICE DAVIS: No, it just happens to be so in the circumstances of this particular case.

MR SUGAR: But as I understand your judgment my Lord, you say that because I can make a further request for information, then there is no point in referring the matter back in relation to the first request -- refer the matter back to the Information Commissioner, and that would always be the case.

MR JUSTICE DAVIS: I am not sure I agree with you. What happened in this particular case when you appealed is that a vast amount of fresh evidence was put in. For all I know that will not be so, people will stick to the position as it always before the IC. In this case -- I apprehend it is very unusual to have a three-day hearing before an Information Tribunal.

MR SUGAR: Of course in other cases, if your jurisdiction decision stands, then there will not be an opportunity for complainants to get further information because I only got it as a result of the Tribunal's disclosure process, and that I the reality of what will actually happen.

MR JUSTICE DAVIS: The IC had better look to his procedures then, had he not?

MR SUGAR: He may not have the resources to do so, my Lord.

MR JUSTICE DAVIS: Yes, okay.

MR SUGAR: The second point is that I think I failed to convey again the importance of time in this case. It is agreed by all parties that the test for when the journalism exception needs to be determined is the time when the request for the information is made, and it is clear that it is possible that information is held for the purposes of journalism at one time and not at another time. There is no doubt that the BBC argue is that at a later time, now, the Journalism Board probably has no longer anything to do with the Balen Report anymore and they will say that it is being used for programme-making activity, more directly to programme-making related activity rather than for strategic activity, as the Information Tribunal put it. So the exact time really can matter and really can matter precisely in this case. That is what I say. That is what I want to argue.

MR JUSTICE DAVIS: So you would like permission to appeal, but limited to "for the purposes of journalism" South Yorkshire point and to the E point, but not on the other grounds?

MR SUGAR: Yes.

MR JUSTICE DAVIS: Have I clearly understood that?

MR SUGAR: You have.

MR JUSTICE DAVIS: Thank you very much.

Mr Hooper?

MR HOOPER: My Lord, as to the jurisdiction decision, the Commissioner is not seeking to appeal that, in essence remains neutral between the parties, although he certainly does not dissent from the suggestion that this is a second appeal and thus falls within CPR 52.13.

MR JUSTICE DAVIS: Yes.

MR HOOPER: Turning to the judicial review against me --

MR JUSTICE DAVIS: If you would assist me on that Mr Hooper, just supposing Mr Sugar were right and this is not to be regarded as a second stage decision because it is a preliminary ruling not covered by section 59, do you have anything you wish to say about whether or not the IC did in fact and in law serve a decision notice? Is there anything you wish to add on that?

MR HOOPER: My Lord, I would maintain the argument that I put before your Lordship during the hearing, in so far as I had the opportunity to do so on the --

MR JUSTICE DAVIS: But would you seek to say that there is a -- as I said to Mr Sugar, on what I may call the statutory point I am very sympathetic, but it is of somewhat less importance on the letter itself because it is a one-off letter.

MR HOOPER: My Lord, I do not wish to be unhelpful, but the Commissioner is neutral as to permission going forward on jurisdiction.

MR JUSTICE DAVIS: On judicial review?

MR HOOPER: On judicial review, as Mr Sugar clarified there are just two grounds that he wishes to take forward, firstly South Yorkshire and secondly the E point. As to South Yorkshire, I submit with great respect that your Lordship's judgment is clear on the point. There is not a real prospect of success.

MR JUSTICE DAVIS: I might be clearly wrong, according to Mr Sugar, I do not know.

MR HOOPER: My Lord, yes. I simply say that the Commissioner feels there is not a real prospect of success going forward, and further that your Lordship's comments at the end of the judgment militate, in my submission, against a grant of permission as well.

MR JUSTICE DAVIS: Yes.

MR HOOPER: As to E, I make the same point as to the thrust of your Lordship's judgment, but also associate myself with your Lordship's point that this new --

MR JUSTICE DAVIS: Shifting ground.

MR HOOPER: -- (inaudible) as opposed to -- upon which the E judgment supposedly turns is a new matter that has been put before your Lordship today but not during the hearing, and it is not open to Mr Sugar to proceed on that point.

MR JUSTICE DAVIS: Indeed, leave to amend on that point (inaudible) strictly.

Miss Carss-Frisk anything you wish to add in reply?

MISS CARSS-FRISK: I agree with Mr Hooper and perhaps the main point is that things have moved on, as your Lordship has noted, and that therefore it would not be right for this point to go to the Court of Appeal in relation to the JR, given that Mr Sugar can pursue matters if he wishes further before the Commissioner in any event.

Just as to the question of whether second appeal or not, the appellate scheme to the Tribunal, sections 57 to 59, of course do not draw a distinction between preliminary and other decisions. The reality is that here the Tribunal clearly purported to deal with what it thought was a decision notice within that appellate structure by the Commissioner and purported to deal with that decision notice as it saw it finally. However much it may have decided or called it a preliminary matter, the fact is it issued a decision within that appellate structure which we would say within the wording of those sections was clearly fit for appeal to this court.

MR SUGAR: My Lord, may I add one thing? My friend thinks it is important that you know quite what the time pressure involved in my JR application was. Under the procedural timetable I received the skeletons in reply from the BBC and from the Information Commissioner on Friday 23rd March, and I had the weekend, which in fact I was otherwise engaged, before the Tuesday of the hearing to consider them, in a subject area which is not, although I am lawyer, my Lord I think as will probably have gathered, public law has been learned on the hoof in this case, my Lord. I make that point.

MR JUSTICE DAVIS: You made a very good job of it Mr Sugar.

JUDGMENT ON PERMISSION TO APPEAL

MR JUSTICE DAVIS: I now have to deal with the question of permission to appeal. On the jurisdiction issue it is plain to me that potentially important points of statutory interpretation arise, which indeed are also points of wider potential implication than this case itself and which as it seems to me raise realistically arguable issues.

However, I do not think it right or indeed open for me to grant permission to appeal to Mr Sugar because, as I see it, I cannot do so by reference to Rule 52.13. I should add also that I still maintain my difficulty about the absence of there being an appealable decision notice having regard to the wording of the letters of the Information Commissioner, which raise no points of general importance and are simply specific to the wording of those particular letters.

In the round, therefore, I think I am required to refuse permission to appeal, but in any event if I did have jurisdiction to grant permission to appeal I think I would leave it to be decided by the Court of Appeal itself rather than me giving permission.

So far as the judicial review claim is concerned, it is clear that on any view I do have jurisdiction to grant permission to appeal. Mr Sugar seeks permission to appeal on just two of the points. The first is the question of the interpretation of the phrase "for the purposes of journalism" which runs into the applicability of what I might call the South Yorkshire principle. Speaking for myself, those points seem to me to be points that are realistically arguable and indeed raise issues which run wider than this particular case. I was unimpressed by Mr Sugar's points seeking permission to appeal on the E v Home Secretary ground, which involved him seeking to raise a point he had not sought to argue below. So I would on any footing refuse permission on that particular point.

But reverting to the first point, although it raises potentially important issues it still seems to me, for the reasons I have given in my judgment, that the reality is that that issue has become academic and overtaken by events in the circumstances of this particular case. So on that particular judicial review claim, I refuse permission. I think it better that if an appeal is sought to be made then permission to do so should be granted by the Court of Appeal, if it sees fit to do so.

Now Mr Sugar, if you do seek to apply for permission to appeal to the Court of Appeal, as indeed Mr Hooper may also, I do not know, seek to do, and that is your right, do we need to consider something about protective costs?

MR SUGAR: It has of course occurred to me my Lord, but it was not clear to me that you had jurisdiction to extend --

MR JUSTICE DAVIS: I think I probably do. I do not know whether I should. You are a partner in the firm of Forsters?

MR SUGAR: I am not a partner, I am a former partner. I am now a consultant.

MR JUSTICE DAVIS: A consultant. A jolly good firm. I think maybe you could afford to pay for costs if you lose?

MR SUGAR: My Lord, I suppose I could, I suppose I could technically afford it. It would involve very considerable pain and -- but what I will tell you is that I shall not be taking the case forward if I do not get a protective costs order. That is a fact. It is a matter of domestic concern to my wife, quite obviously.

MR JUSTICE DAVIS: I am not sure I can be influences by that. That having been said, the fact is a protective costs order has previously been made in your favour and it just occurred to me that -- obviously I will hear Mr Hooper and Miss Carss-Frisk on this, because obviously ultimately all this is being funded either by the licence payer or by the taxpayer or both, and I have got to keep my eye on their interests as well as yours. But just possibly I might be receptive, if you would like permission to appeal to the Court of Appeal to apply there, to extend the protective costs order up to and including any application for permission to appeal you might make, and then if you are granted permission, and if I have jurisdiction to do this, the Court of Appeal can then decide whether or not to continue it.

MR SUGAR: My Lord, if you have jurisdiction to do that that would be extremely helpful.

There is one other point in the administration process, which is that as currently minded I am unlikely to wish to take this case myself to the Court of Appeal, I think I should try to find some representation, and that means that I am contemplating taking some advice on whether this ought to be appealed or not and I would therefore ask for more time than 14 days --

MR JUSTICE DAVIS: All right.

MR SUGAR: -- to go through that process.

MR JUSTICE DAVIS: Shall I just hear Miss Carss-Frisk and then Mr Hooper on this?

MISS CARSS-FRISK: I think there is probably not an issue actually because Forbes J already granted an order that protected Mr Sugar for any application for permission to appeal.

MR JUSTICE DAVIS: Oh right.

MISS CARSS-FRISK: So that is tab 23 of bundle A, if your Lordship might have that bundle still. So it seems to us that that is already covered. I think certainly Mr Hooper looks as though he is agreeing, so.... It is paragraph 14 of that order, 29th January this year. (Pause)

MR JUSTICE DAVIS: Is that sort of thing commonly being done at first instance, because it all might depend on what actually happens at the substantive hearing before the High Court judge.

MISS CARSS-FRISK: I am afraid I cannot comment my Lord, but there it is.

MR JUSTICE DAVIS: I better have a word with Forbes J when I next see him.

MISS CARSS-FRISK: I am sure it all our fault.

MR JUSTICE DAVIS: As it happens, it has probably proved to be very prescient because these are not trivial issues here, are they, they are not at all. It looks as though -- if Mr Sugar then seeks legal advice and incurs costs in that, that again is covered. There is no bar on that at all. It is just your exposure to the other side you are concerned about, are you not?

MR SUGAR: Yes.

MR JUSTICE DAVIS: Right.

MISS CARSS-FRISK: My Lord, I should just say it is true that that order was granted on the basis that he appeared in person. That was certainly the basis for --

MR JUSTICE DAVIS: I think what Mr Sugar is concerned about is exposure to the other side. I think that is right. For the avoidance of doubt, I have to say in the circumstances of this case, Forbes J makes it very much easier for me, but I would be minded to do that anyway. So you will have your protective costs order, but up to and including the permission to appeal application. If permission to appeal is granted, then of course it is for the Court of Appeal to decide; is that clearly understood?

MR SUGAR: Yes.

MR JUSTICE DAVIS: Mr Hooper, do you wish to make any submission on that?

MR HOOPER: No.

MR JUSTICE DAVIS: Is there anything else?

MR SUGAR: May I have some time, my Lord, for...?

MR JUSTICE DAVIS: Yes, how long do you want?

MR SUGAR: I am told that the old rule or the recommended rule was six weeks. It is 14 days now, four weeks would be useful, six weeks would be good.

MR JUSTICE DAVIS: Any objection to that Miss Carss-Frisk?

MISS CARSS-FRISK: It seems to us that four weeks would be sensible, six weeks is perhaps a bit on the long side.

MR JUSTICE DAVIS: Mr Hooper any submissions?

MR HOOPER: Four weeks.

MR JUSTICE DAVIS: I will extend time for four weeks Mr Sugar.

So there is nothing else then?

MISS CARSS-FRISK: No.

MR JUSTICE DAVIS: May I repeat my thanks to all concerned for their very helpful arguments.