Bundles of Fun

February 19th, 2021

Not infrequently in the Tribunals an issue will arise about the handling of documents or evidence disclosed in the course of an information rights appeal, in a context where the GRC and UT Rules do not contain an equivalent to CPR r.31.22. Some useful guidance has now been given from the Upper Tribunal in DVLA v Information Commissioner & Williams [2020] UKUT 310 (AAC).

Mr Williams wished to post online the entire open hearing bundle for his appeal in the FTT, along with the skeleton arguments, in order, he explained, to solicit assistance with his response to the DVLA’s appeal to the Upper Tribunal. He wanted comments on their arguments from a wider audience given he was acting in person. Mr Williams considered that he did not need the permission of the UT to do so, but agreed to wait until DVLA’s application for a direction preventing him from publishing was considered.

Judge Wikeley dealt with the matter in a separate judgment. He held that Mr Williams did require the UT’s permission before he could publish the bundle on the internet, to the world. He agreed with Moss v Information Commissioner & Cabinet Office [2020] UKUT 242 (AAC) that there was no Article 6 ECHR right engaged in a FOIA appeal, and the right to seek legal assistance did not require publication of the hearing bundle. The UT Rules do not contain the provisions of the CPR, but it was appropriate to import the same solution where CPR r.31.22 (and r.31.12) codified the implied undertaking at common law not to use documents disclosed in legal proceedings for a collateral purpose. The same approach had been taken in the Employment Tribunals, where the rules were equally silent. Accordingly, Mr Williams required permission to depart from that position.

Judge Wikeley accepted that there were distinctions between the case and those which permitted disclosure of documents referred to in open court to non-parties: this was not an open justice matter at all, it pre-dated the hearing and did not involve a request from a non-party. Judge Wikeley did not quite answer whether or not the UT would have the power to permit Mr Williams’ request, or what the power might be if it existed.

He did, however, address the power to restrict publication in rule 14 of the UT Rules, which he agreed could be used to prevent wider publication of material in an open bundle if it was interest interests of justice to do so. Judge Wikeley agreed that he should make a direction doing so, as requested by the DVLA. In particular, he accepted the data protection concerns of publication of all the material in the bundle to the world at large – a rather different proposition to providing copies of some documents to journalists reporting on proceedings, without limitation and without any possibility of subsequent control. The direction made prohibited publication of all documents in the bundles, save for the FTT judgment, but including (in the circumstances) the skeleton arguments.

In an era of remote hearings and electronic bundles, the judgment in DVLA is likely to be of real practical significance, although it will also doubtless give rise to concerns about the ability of the Tribunals to address cases in which a party publishes without notice or application. Revision of the Tribunal Rules to provide clarity would be no bad thing.

Christopher Knight

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