England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/08/2013

Mr Justice Dingemans:

The application

1. The Claimant, Mr John Bredenkamp, applies for disclosure and further information from the Secretary of State for Foreign and Commonwealth Affairs ("the Secretary of State") in interim applications made in proceedings for judicial review.
2. When the applications for disclosure and further information were first made there were some 240 requests for documents or further information. This only needs to be stated for it to be appreciated that this was not the focussed application for disclosure encountered, still only on limited occasions, in proceedings for judicial review. In fact the applications were drafted in a way more usually encountered in highly contested commercial proceedings.

The freezing orders

3. Mr Bredenkamp is a Zimbabwean national. His assets, and those of companies owned or controlled by him, became the subject of a freezing order by the US Department of the Treasury, Office of Foreign Assets Control ("OFAC") in late 2008. I am told that the OFAC freezing order continues.
4. Between 27 January 2009 and 17 February 2012 Mr Bredenkamp's assets and those of companies owned or controlled by him were also frozen as a result of being listed in Annex III to Regulation EC 314/2004 ("the EC Regulation"). The EC Regulation permits the imposition of sanctions on those assisting the Mugabe regime in Zimbabwe. The Secretary of State played a part in including Mr Bredenkamp on Annex III.
5. Mr Bredenkamp challenges the legality of the following decisions or failures by the Secretary of State: (1) the decision taken in about January 2009 to propose that Mr Bredenkamp and his companies be included in Annex III (paragraph 13(a) of the Amended Statement of Facts and Grounds); (2) the decision taken in August 2011 to refuse to provide assistance to Mr Bredenkamp in his efforts to get delisted from Annex III (paragraph 13(b) of the Amended Statement of Facts and Grounds); and (3) the failure to seek Mr Bredenkamp's delisting between January 2009 and December 2011 (paragraph 15(g) of the Amended Statement of Facts and Grounds).

The proceedings for judicial review and some issues of case management

6. The judicial review proceedings commenced on 22 December 2011. Mr Bredenkamp sought declarations relating to the legality of the Secretary of State's actions, and other relief designed to ensure that the Secretary of State assisted him in obtaining his removal from Annex III.
7. The background to this action is set out in the judgment of Ouseley J. [2012] EWHC 3297 (Admin) on the hearing of preliminary issues agreed between the parties. In very general terms the preliminary issues were concerned with the interrelationship between the permissible challenge to the Secretary of State's decisions, and impermissible challenges to the EU decision making, which was the subject of a separate legal order and separate proceedings.
8. The removal of Mr Bredenkamp and his companies from Annex III in January 2012 has overtaken some of the relief sought in these proceedings. However the Claimant continues these proceedings, and I was informed by Mr Timothy Otty QC, counsel for Mr Bredenkamp, that Mr Bredenkamp maintains his claim for declaratory relief because such relief, if granted, may assist in vindicating Mr Bredenkamp's reputation and assist him in restoring banking facilities, notwithstanding his continued OFAC listing. It is said that, given the distribution of his worldwide business interests, Mr Bredenkamp's inclusion on Annex III was more damaging to his than his OFAC listing.
9. I accept that there is a discretion to grant declaratory relief in proceedings for judicial review relating to past events, particularly where it may have a current practical impact. However it was apparent from the way in which the application for specific disclosure and further information had been made that Mr Bredenkamp contemplates more than simply declaratory relief.
10. In this respect, Mr Otty fairly and frankly stated that Mr Bredenkamp is contemplating private law proceedings against the Secretary of State and others for whom the Secretary of State is responsible for: (1) misfeasance in public office; (2) infringement of provisions of the Data Protection Act; and (3) for negligent misstatement. No final decision has been made on behalf of Mr Bredenkamp about these causes of action or matters. When asked about the relationship between future contemplated proceedings, and the existing proceedings for judicial review, Mr Otty noted that an advantage of proceedings in the Administrative Court was the availability of reasonably speedy hearing dates.
11. The Administrative Court does attempt to provide hearings within a short timescale. However the Administrative Court is likely only to be able to continue to provide that service if its proceedings and procedures remain uncomplicated and properly focussed on auditing the legality of public decision making, rather than determining contested historic events where extensive requests for disclosure are made and oral evidence is likely to be given. In that respect I note that, again fairly and properly, Mr Bredenkamp has highlighted that he reserves the right to seek the cross-examination of Dr Andrew Pocock, the former Ambassador to Zimbabwe. The fact that claims for damages can be combined with actions for judicial review, see CPR 54.3(2), means that arid arguments about jurisdiction between parts of the Queen's Bench Division can be avoided. In circumstances where there is power to order transfer of combined actions, see CPR 54.20, consideration will need to be given, going forward, to combining this action and any future action issued by Mr Bredenkamp. That combined action can then be determined in that part of the Queen's Bench Division best suited to deal with the disputes between the parties, and best able to ensure that the costs remain proportionate. I have set out these matters because they raise issues for the management of this case, and any other related proceedings, going forward.

The applications

12. The applications were made in about April 2012. They were adjourned pending the determination of the preliminary issues by Ouseley J. Thereafter further delay occurred because issues of public interest immunity were raised. The issues of public interest immunity were determined by Collins J. on 21 June 2013 who held that certain documents were not relevant to these proceedings, meaning that the issue of public interest immunity did not need to be determined.
13. The extensive nature of the applications made on behalf of the Claimant elicited a courteous but firm complaint from Mr Jonathan Swift QC on behalf of the Secretary of State about the appropriateness of making such applications. Mr Otty made an equally courteous but firm complaint about the Secretary of State's approach to disclosure in this case. In order to determine the applications before me it is not necessary for me to say anything about these mutual complaints beyond this. First the Claimant's applications were, as originally drafted, obviously not appropriate for proceedings by way of judicial review. This was because the applications sought numerous documents which were not necessary for the fair determination of the applications for judicial review. Secondly the Secretary of State's evidence has not included either documents which might have been expected to be provided, or an explanation for the absence of those documents. This was because the critical briefings leading up to the decision being made to propose Mr Bredenkamp for listing had not been exhibited.
14. By the time that the application came to be heard there were some 26 remaining categories of specific disclosure, set out in paragraph 3 of the Claimant's draft order, and some 24 requests for further information, set out in paragraph 4 of the Claimant's draft order. There was also disclosure sought in relation to 4 further categories referred to in Dr Pocock's witness statement, and a request that a search be made of records held by the Security Service and Secret Intelligence Service, and a request arising out of the disclosure on Friday 17 July 2013 of two emails entitled document A and document B.
15. In the course of the helpful submissions made by Mr Otty and Mr Swift there was further refinement of: the requests; the response to the requests; and therefore the issues for my determination. Both parties accepted that more communication between the parties might have assisted in everyone's preparation for the hearing.

The principles to be applied on these applications

16. There is a duty of candour on behalf of public bodies in judicial review proceedings. This includes a duty "to make full and fair disclosure", see R v Lancashire County Council ex parte Huddleston [1986] 2 All ER 941 at 943b. The existence of this duty on Defendants in public law proceedings is an important factor distinguishing judicial review proceedings from ordinary private law proceedings. In this respect a public authority will, as a matter of good practice, ordinarily exhibit a document significant to its decision as the primary evidence, see Tweed v Parades Commission [2006] UKHL 53; [2007] 1 AC 650 at paragraph 4.
17. Other features which distinguish judicial review proceedings from ordinary proceedings are that: (1) the facts are, generally, not in issue; and (2) the decision is being reviewed for legality, and not for its merits.
18. However it is established that the Court can order disclosure to be provided by the Defendant in appropriate cases. Orders for disclosure are not automatic. They should be made only where "disclosure appears to be necessary in order to resolve the matter fairly and justly", see Tweed at paragraph 3. Cases involving proportionality reviews are one type of case where disclosure may be necessary, but even in such cases disclosure orders are likely to remain exceptional, see Tweed at paragraph 56. The decision for disclosure must be made on the facts of each individual case.
19. There does not appear to be any relevant authority on the approach to be adopted when considering CPR Part 18 Requests for Further Information in proceedings for judicial review. It appeared to be common ground that an approach similar to that adopted in Tweed should be taken to CPR Part 18 Requests for Further Information, namely that such further information will be ordered when it is necessary in order to resolve the matter fairly and justly.
20. As a matter of current practice Requests for Further Information are very rarely sought in proceedings by way of judicial review. This seems to me to be the proper approach. If time-consuming and expensive interim steps are to be avoided in proceedings by way of judicial review, and time-consuming and expensive interim steps should be avoided in judicial review proceedings, requests for further information should remain exceptional. If the Court is required to determine a contested application for Further Information it should only direct that information should be provided when it is necessary to do so in order to resolve the matter fairly and justly. For the reasons given in paragraphs 16 and 17 above there are principled differences between proceedings by way of judicial review and ordinary litigation.

The applications for disclosure

21. I can now turn to the relevant requests. I do not propose to set out the process through which the requests, and the response to the requests, have changed in the course of the application and submissions because that is not necessary for the parties to know what decisions I have made and why I have made them. I will attempt simply to set out my decision and the reasons for my decision in relation to each request which I understand to be still in issue by reference to the Defendant's Further Information ("DFI") Response number.

DFI 7.1

22. The Claimant seeks documents reviewed by Mr Dennis in order to make a hearsay statement in his witness statement. The fact that Mr Dennis made a hearsay statement "on the basis of documents he has reviewed" does not entitle Mr Bredenkamp to disclosure of the documents that were reviewed. There is nothing to indicate that the provision of such documents will be necessary to resolve the matter fairly and justly in circumstances where the email dated 31 December 2008, which sets out Dr Pocock's position, has been disclosed in a redacted form as document B.

DFI 9.11

23. This relates to documents in which Dr Pocock communicated his opinion on material to HM Treasury or the Foreign and Commonwealth Office ("FCO"). Document A, an email dated 1 December 2008 from Dr Pocock has been disclosed, as has document B, referred to in paragraph 22 above. Mr Otty wanted confirmation that he would not be met by further and later documents, but that is not the function of applications for disclosure in judicial review proceedings.
24. In any event paragraph 19 of the Secretary of State's Skeleton Argument for the Specific Disclosure Application dated 23 July 2013 sets out the search that was made, and it seems that there are no further documents to be disclosed. The Secretary of State did not object to an order that an appropriate witness statement confirming paragraph 19 be provided, and I direct that such a witness statement be provided.

DFI 10.12

25. Mr Bredenkamp seeks any further documents, in addition to documents A and B, which contain any notes made by Dr Pocock recording information which he received from contacts about Mr Bredenkamp. The disclosure of the underlying notes made by Dr Pocock is not necessary to determine this action. The important issue is what information was provided by Dr Pocock to the FCO which led to the Secretary of State's decision to propose Mr Bredenkamp for listing. The issue is not what notes were made by Dr Pocock.

DFI 13.1

26. By the conclusion of the hearing there were no further documents sought under this category, beyond requests arising from documents A and B. I have addressed these requests below.

DFI 14.1

27. This is a request for documents relating to the discussion of officials in London about whether the Claimant met the listing criteria for Annex III. As noted above there is a surprising absence of documents recording the relevant decision making in this case. Mr Swift said that attempts had been made to find relevant briefing documents, but that they appear to have been lost. Further inquiries would be made with an official currently serving overseas, and further documents (if any were located) would be disclosed. I will make an order directing those further inquiries to be made and for a statement to be made setting out the results of such further inquiries.

DFI 15.3 and 15.5

28. This request relates to documents relating to briefing notes and decisions made in London to press for collective EU action against the Claimant. These are exactly the sort of documents that might be expected to be exhibited to the Defendant's witness statements, or an explanation given for their absence. It seems that searches for these documents have not located them. Further efforts are being made to obtain these documents from an official serving overseas. The Defendant should either disclose both the briefing note and decision (if they can be located), or provide a witness statement detailing why they cannot be disclosed. In any event it would be helpful for the Judge determining this application for judicial review to have further information about why it was considered that the Claimant met the listing criteria, but the order I make relates to disclosure or the witness statement.

DFI 16.1

29. By this request the Claimant sought the EU HOMs report, and earlier drafts of it. The Defendant said that this related to the impermissible challenge to the EU decision making (see paragraph 7 above). The Claimant pressed for disclosure of the drafts, on the basis that they might assist him. The EU HOMs report, and the drafts of that report, were the subject of challenge in the EU proceedings. They are not the subject of this challenge. It is not necessary to order disclosure of the EU HOMs report, or earlier drafts, for the fair resolution of this claim. This is because the material challenge is to the Defendant's decision to propose the Claimant, and not what the EU made of that proposal.

DFI 16.6

30. This request was directed to identifying documents evidencing the reasons for the proposal to include the Claimant in the EU HOMs report. It appears that the relevant documents were documents A and B. Given the disclosure of those documents, and in the light of the witness statement to be provided in paragraph 24 above, I make no further order for disclosure.

DFI 19.1

31. The request as drafted at paragraph 3 of the draft order ("copies of the contemporaneous records or other documents referred to at paragraph … 19.1") appears to be a reference to all documents reviewed by Mr Dennis in making his statement about the discussion on 13 January 2009. The Claimant has not shown the necessity for such extensive disclosure. However, given the comparative absence of other contemporaneous evidence relating to the actual decision making, and given the timing of this discussion, the minute dated 13 January 2009, so far as it relates to discussions about the Claimant, should be disclosed.

DFI 27.1

32. This request is targeted at documents relating to the approach made by the British Embassy in Washington to the US Department of the Treasury in relation to the US evidence supporting the Claimant's OFAC listing. The disclosure of these documents is not necessary for the fair resolution of the claim for judicial review because the approach is not the issue in these judicial review proceedings. There seemed to me to be an element of "fishing" in this request.

DFI 32.5

33. This request relates to a review in October 2009 at the British embassy of persons subject to restrictive measures against the listing criteria. The Defendant has volunteered some further information about the contents of emails. That information should be set out in a witness statement. It is not necessary to order any further disclosure because it appears that the only relevant information will be set out in the witness statement.

DFI 34.3

34. This request relates to documents recording discussions in Brussels on 20 January 2010. The decision making in Brussels was engaged by the challenge in the EU proceedings. It is not the subject of this challenge. It is therefore not necessary to order disclosure of these discussions for a fair resolution of this claim.

DFI 36.1

35. This request relates to proposals to categorise individuals meeting the listing criteria into three tranches so that any delisting could take place on a phased basis. Disclosure of this document is not necessary for the fair resolution of this claim, because all three tranches of persons were said to be persons who met the listing criteria. Information about which tranche the Claimant had been placed does not assist the resolution of the issues in this claim.

DFI 37.7

36. This request relates to a list of individuals, not including the Claimant, who it was suggested could be removed from the list in February 2011. This information is not required for a further resolution of the claim, because the document does not relate to the Claimant.

DFI 42.2

37. This request relates to a document in which the option of delisting the Claimant was considered. The relevance of this to the issues in the action is obvious. The Defendant has now provided information about the contents of the relevant document in its response to the disclosure request. This information should be set out in a witness statement. I accept that relevant critical documents should be disclosed where possible, but in circumstances where: (1) the relevant part of the document will now be set out in a witness statement; (2) it is obvious that the document relates to many other persons, there being a reference made to 73 individuals in the part of the document referred to in the Defendant's response; and (3) there is the continuing duty of candour; it is not necessary to order disclosure of the underlying document for a fair resolution of this claim.

DFI 44.2

38. This is a request in relation to a document submitted to Ministers with options for the UK's starting position in EU negotiations. The document did not include the names of individuals, although categories of persons were included. It does not seem to me that disclosure of this document is necessary for the fair resolution of this claim. Although the Claimant does complain of the failure to seek his delisting between January 2009 and December 2011 (see paragraph 5(3) above), this document is right at the end of the period, and so will not assist with the failure to seek delisting at an earlier time. The prospects of the document assisting in relation to the validity of the reasons for the Claimant's original listing are remote, and very speculative. This is because it is said that the document does not name him.

DFI 45.3 and 45.4

39. These requests are for records of the decision making process and documents relating to the Claimant generated by the review of information carried out by UK officials in London and Harare in response to a report from EU HOMs from Harare on 21 December 2011. This document is right at the end of the period, and so will not assist with the failure to seek delisting at an earlier time. The prospect of the documents assisting with the adequacy of the reasons for the original listing is remote and speculative in circumstances where those reasons for listing should have been disclosed in the evidence and documents relating to that earlier listing.

DFI 46.1

40. This is a request for the submission sent to Ministers on 24 January 2012 providing reasons for the delisting of the Claimant. Disclosure of this document does seem to me to be necessary for a fair resolution of this action. It was the relevant document bringing the Claimant's listing to an end. The reasons for this change are relevant to the legality of the decisions challenged by the Claimant. This is one of the documents where a summary is not likely to be sufficient, for the reasons given in Tweed. Disclosure should be made of those parts of the document which relate to the Claimant.

Documents A and B

41. The disclosure of documents A and B generated further requests for disclosure. The Claimant noted that the proposals were to be "chewed over" and wanted to know whether there were any reply emails. The response was that any replies were either irrelevant or covered by legal professional privilege. In these circumstances it is not necessary to order further disclosure. The Claimant also wanted to know what happened to a proposal to list Mr Hoogstraten. That proposal does not engage the issues in this action, and again seems to be a request made in the hope that something might turn up.

Requests for further information

42. A number of requests for further information were pursued. Again I do not propose to set out the process through which the requests, and the response to the requests, have changed in the course of the application and submissions. I will address these requests which I understand to be still in issue, by reference to the DFI Response number.

DFI 2.3-2.6

43. This is a request for further information about the standard of proof to be applied by listing. Although the Court will be assisted by submissions on matters such as the procedure and criteria to be applied when listing when determining this action, it is not necessary to order these matters to be answered by way of further information.

DFI 10.4-10.10

44. This is a request for the identities of the "well-connected senior contacts" including the names of journalists who provided "credible anecdotal evidence concerning Mr Bredenkamp's relationship with the Mugabe regime …", and the "anecdotal evidence" which was provided. The Claimant says he needs this information to assess whether the contacts did know anything, or merely provided an echo chamber. The Defendant resists the application on the basis that the challenge is to the rationality of the decision to propose for designation and it is the information which was provided, and not the identities of those persons, which is relevant.
45. It is right that this is a challenge to the rationality of the decision to propose the Claimant. However the Defendant has recognised the need to provide some description about the contacts, describing them as "well-connected senior contacts" and said that the contacts included businessmen, journalists and expatriate Zimbabweans. It does not seem to me that it is necessary for the Claimant to know the identity of these persons, or to have descriptions beyond those provided. However the Claimant and the Court will need to know the descriptions of the "well-connected contacts" if they were not businessmen, journalists and expatriate Zimbabweans. The Defendant should provide any relevant further descriptions.

DFI 14.8

46. The Claimant wanted to know whether there was current information indicating that the Claimant had maintained links to the Mugabe regime. This is a request that did not arise out of the statement. Mr Dennis had said that the officials discussed whether the available evidence demonstrated that the Claimant met the listing criteria, and the Defendant has confirmed that it was considered necessary that the Claimant should meet the listing criteria. This is a sufficient answer.

DFI 18.4

47. The first question asked in this request has been answered in clear terms. The second question, which was directed to the underlying materials, has been answered by reference to paragraphs in the witness statements. If this does not support the first answer (which appeared to be the Claimant's point) that is not a matter for resolution at this interim stage.

DFI 19.5-19.6

48. These requests arose out of other documents on which the Claimant relies, but whose admissibility is controversial. The provision of this further information is not necessary for the fair resolution of this claim, because the Defendant has set out the basis on which it proposed the listing of the Claimant, which is the relevant issue to be determined.

DFI 37.4

49. It is not necessary for the fair resolution of this claim to order the Defendant to provide this further information. The Defendant has set out the evidence on which it relies to defend the challenges. Whether the information is sufficient is a matter for the substantive hearing.

DFI 46.7 and 46.10

50. This is a request about the basis for the assessment that the Claimant's links with Mr Mugabe had deteriorated and when that deterioration occurred. The answers set out by the Defendant in the document are sufficient answers.

Paragraphs 5(a)-(d) of the draft order

51. A witness statement from Dr Pocock has been served. This has generated further requests for disclosure as set out in paragraph 5 of the draft order.
52. The Claimant seeks documentation recording the identity and views of local observers and senior contacts, EU HOM exchanges, US materials seen by Dr Pocock, and Dr Pocock's communications with the FCO. The Defendant has provided the emails representing Dr Pocock's communications with the FCO, and a further statement may be provided. However it is not necessary to order disclosure of the other documents for a fair resolution of this claim. This is because the challenge is to the rationality of the Defendant's decision, and not whether the reports to the Defendant were justified by the underlying materials.

Paragraph 1 of the draft order

53. The Claimant seeks an order that the Defendant should cause a search of the records of the Security Service and Secret Intelligence Service to be made in order to identify the existence or otherwise of documentation relevant to the Claimant's allegations that Mr Robertson (who the Claimant said was the Senior Intelligence Officer at the US Embassy in Harare) had reported that the UK had pressed the US to impose sanctions on the Claimant.
54. It is not necessary to order this search to be carried out (which would be costly and is bound to raise numerous issues of public interest immunity) in order to resolve this action fairly. This is because the challenge in these proceedings is to the Defendant's decision to propose the Claimant for listing, and maintain that listing. It is not whether the US listing was justified. It might also be noted that the US listing has continued, whereas the Claimant is no longer listed in Annex III, which suggests that the US position is independent of the UK's position.

Conclusion

55. I have set out my reasons for accepting or rejecting the requests above, on what I understand to be the outstanding requests. The form of order, and any consequential matters, can be considered at the hearing on 25 September 2013. The issues of case management identified above can also be addressed on that date. In the light of the holiday commitments about which I was told on 22 July 2013, time for making any application for permission to appeal and for service of any appeal notice will be extended to run from 25 September 2013.