High Court exceeded powers in making orders in Afghan cases

The Secretaries of State for Defence, the Home Office and Foreign, Commonwealth and Development Affairs have succeeded in an appeal against three orders made by the High Court in litigation arising from the Afghan data breach which came to light last year after the superinjunction was lifted. Two of the orders were a general direction intended to cover all similar cases and the third was a mandatory order for the minister to change a policy “forthwith” after no action to do so had been taken months after a judgment finding that this needed to be done. The case is R (RA & Anor) v Secretary of State for Foreign, Commonwealth and Development Affairs [2026] EWCA Civ 3.

Background

All three of the orders under appeal were made by the High Court following issues with the conduct of the Ministry of Defence.

For the first two orders, in two separate cases it had been accepted by the defendants (as they then were) that officials at the Ministry of Defence had misled the court following “serious breakdowns in communications” meaning that the officials instructing the Government Legal Department as well as counsel were unaware of material facts. This meant that all of the defendants were unable to comply with a previously agreed court timetable.

The judge heavily criticised the conduct of the Ministry of Defence officials, stating that:

What the CLOSED witness statement presents is a picture of civil servants who were apparently entirely reckless as to whether the applications to the court presented a complete and accurate picture of the reasons why the applications were made. This is a failure of the most grievous order. It is simply shocking that it has happened serially on each of the three occasions I have mentioned in these two cases and beggars belief.

The judge noted that there were similar claims in the Administrative Court and expressed concern that those cases would have similar failings.

The court proceeded to make a general direction in each of the cases to cover any application made by the three Secretaries of State “to vary any direction made in any ARAP-related High Court case involving a closed material procedure”. The court ordered that any such application must be “supported by a witness statement made by a civil servant of appropriate seniority” addressing certain points, including an explanation as to why compliance was no longer possible.

These two cases were subsequently conceded and the claimants granted leave outside the rules. The judicial reviews were withdrawn.

The third order under appeal here was made after the judge said that he was “entirely unimpressed by the extensive delay” in amending the Afghanistan Response Route policy in line with R (CX1 and MP1) v Secretary of State for Defence [2024] EWHC (Admin) 892 (our write up). In that case, the Secretary of State for Defence had been told to reconsider the approach to identifying people within the highest risk group and to inform the court of the outcome.

The decision in CX1 was made in June 2024 and following a hearing in October 2024 the judge made a mandatory order that the Secretaries of State for Defence and the Home Department “will forthwith prepare a revised version of the ARR policy statement”.

The appeal

The Secretaries of State appealed all three of the above orders. There were several grounds of appeal.

The Court of Appeal started by saying that:

It bears repeating that the situation created by the data breach and the super-injunction was wholly abnormal. The court played a crucial role in ensuring that justice could still be done to the group of individuals who were affected. As Judge in Charge of the Administrative Court, the judge was centrally concerned with this endeavour and we strongly endorse his commitment to upholding the overriding objective of dealing justly with these extremely sensitive cases.

For the first two orders, the court allowed the appeal on the first ground, which was that the judge “does not have the power to make (a) an order in a case that is not being conducted by them, or (b) an order in a case that does not yet exist, or (c) an order that concerns the conduct of a non-party”. The Court of Appeal said that:

the judge was clearly aware that he was making a most unusual form of order, he did not attempt to identify the power that he was exercising. We have therefore had to seek justification and we have not found it in the respondents’ arguments. Even in the abnormal circumstances that then prevailed, the imposition of a general direction went beyond the proper use of the court’s case management powers.

The court suggested that a better alternative for the judge would have been to make the order requiring a witness statement in the specific cases accompanied by a separate CLOSED judgment stating that he expected the relevant Ministers to draw the court’s attention to that order whenever an extension of time was sought in any other Afghan data breach case.

Addressing the third order, the Court of Appeal said that although “the intention was only to reflect the effect of CX1” the making of “a mandatory order requiring a minister to adopt a policy nevertheless transgressed a fundamental boundary between the role of the court and the role of the executive”. Further, the court gave no advance notice that it intended to make such an order. The appeal was also allowed here.