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Litigation privilege in the First-tier Tribunal


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Those who were present at the recent Administrative Law Bar Association breakfast meeting on costs in judicial review will recall Alison Pickup, Legal Director of the Public Law Project, reminding us that Judicial Review in the Upper Tribunal is not technically judicial review, and of the quotation marks around that term in the heading of section 15 of the Tribunals, Courts and Enforcement Act 2007:

Upper Tribunal’s “judicial review” jurisdiction

In R (Secretary of State for the Home Department) v First-tier Tribunal (Immigration and Asylum Chamber) (Litigation Privilege; First-tier Tribunal) [2018] UKUT 243 (IAC), President Lane and Judge Rintoul considered the circumstances in which the Upper Tribunal should, when exercising its powers to hear a “judicial review”, entertain a challenge to an interlocutory decision made by the First-tier Tribunal in the course of a statutory appeal. They also looked at whether litigation privilege applies in proceedings before the First-tier Tribunal.

WM, the appellant in those proceedings, was the interested party in this rolled up hearing. He was appealing against a decision to deport him following his conviction for terrorism offences in connection with the 21 July 2005 bombings in London. The First-tier Tribunal ordered the disclosure to him of the full text of a censored email between officials in the Home Office and Foreign and Commonwealth Office, parts of which had been disclosed in the proceedings before it. It concerned a conversation between a British Embassy officer and former Minister of the Interior of Somaliland, whither it was proposed to deport WM.

The Foreign and Commonwealth Office said that the email was part of evidence gathering for finalising a “safety on return assessment”, which had been served. The Home Secretary sought to challenge the disclosure order by judicial review. As usual, the First-tier Tribunal took no part in the proceedings. All was left to WM.

It was originally claimed that only “irrelevant material” had been censored, but that claim was dropped, a change of pleading that had caused concern in the First-tier Tribunal. A stay on proceedings was put in place while the matter was looked at by the Upper Tribunal.

Litigation privilege

The bulk of the decision is concerned with litigation privilege and it includes a survey of the authorities that will be of use to readers far beyond cases in the immigration tribunals.

It was held that the Secretaries of State for the Home Department and for the Foreign and Commonwealth Office were one corporate entity for the purposes of the proceedings. The tribunal fudges the question of whether this is indeed a lawyer-client communication: “there is no evidential basis put forward to suggest that either of the communicants was not authorised to give instructions to the applicant’s lawyers” (paragraph 94).

A bold submission was that litigation privilege did not apply because asylum and immigration proceedings are not adversarial. The tribunal described the submission as “surprising” (paragraph 48). “Surprising” is putting it mildly.

The Upper Tribunal held that proceedings in the First-tier Tribunal are sufficiently adversarial in nature to give rise to litigation privilege. Part of its reasoning is the comment in paragraph 47 that “Generally, the FtT cannot go behind concessions by either party”, one which readers may wish to squirrel away for future use.

The tribunal held that “Litigation privilege cannot be abrogated merely because the appeal proceedings concern the interested party’s human rights” (paragraph 60), an important reminder that the rule of law is a concept bigger, broader, and more likely to afford protection, than that of human rights alone.

It was for the applicant to decide how to comply with the duty of candour. The Upper Tribunal held that “once privilege is established, it is absolute” (relying on R v Derby Magistrates [1995] UKHL 18 per Lord Lloyd at paragraph 67). No adverse inference can be drawn from reliance on privilege (paragraph 80). Nor can the decision to disclose part of a document constitute a waiver of privilege in the rest.

High threshold for judicial review of First-tier Tribunal interlocutory decision

Armed with the finding on litigation privilege and having underlined, to deter the overenthusiastic, that while the tribunal retains discretion to grant permission where an alternative remedy is available, it will be reluctant to use it, the tribunal turned to the question of permission. Was the right to apply for permission to appeal against the determination of the First-tier Tribunal a sufficient remedy?

No, held the Upper Tribunal. The high threshold for granting permission had been met. Disclosure, once given, could not be undone and even if he won on appeal, the Secretary of State would have been forced to disclose the document had the order of the First-tier Tribunal been allowed to stand.

[ebook 20010]

More problematic perhaps is the finding that the Secretary of State would have been materially disadvantaged “in breach of [his] fundamental right” had he preferred not to rely on the material (paragraph 98). Which fundamental right is not made clear in this very laconic part of the judgment: the right to privilege or to a fair trial (and if so, not under Article 6, for that does not apply in immigration and asylum appeals: see Maouiaa v France (application no. 39652/98)). The reasoning here is insufficiently developed and paves the way for the Secretary of State to argue for a wide range of partial and selective evidence, including material heavily and unnecessarily censored, to be relied upon by the Tribunal in reaching its determination. Those seeking to challenge representatives of the Secretary of State before the First-tier Tribunal would do well to draw to their attention the remarks of the divisional court in Belhaj v DPP [2018] EWHC 513 at paragraph 40, cited at paragraph 63 of this decision:

Those acting for the Government who properly exercise privilege must give thought to the basis of privileged advice and to the advice itself. If it is clear that the advice was given on an inadequate basis, or a basis clearly at odds with the evidence which will be before a court in the absence of the privileged material, then the duty of candour will require HM Government to correct any misapprehension. Any concern that a contested action was taken in reliance on privileged legal advice obtained on a misleading basis, calls for careful consideration and, if the concern is well-founded and unless the point is immaterial, is likely to call for correction pursuant to the duty of candour.

Permission was granted, as was judicial review. The order to disclose was quashed. The case has been remitted to the First-tier Tribunal to make a fresh decision.

The official headnote

(1) Whether or not to entertain an application for judicial review is a matter that falls within the Upper Tribunal’s discretion, applying well-known principles that apply also in the High Court. Where there is an alternative remedy it would only be in the rarest of cases that the Upper Tribunal would consider exercising its jurisdiction to grant permission to bring judicial review proceedings.

(2) There is a high threshold to be overcome before the Upper Tribunal will entertain an application for judicial review in challenging an interlocutory decision of the FtT. Once the very high threshold is met it is not necessary for each of the grounds to reach that threshold.

(3) Litigation privilege attaches to communications between a client and/or his lawyer and third parties for the purpose of litigation. It entitles the privileged party not to disclose information even if it is relevant to the issues to be determined in a court or tribunal. Proceedings in the First-tier Tribunal are sufficiently adversarial in nature to give rise to litigation privilege. The fact that human rights issues are in play does not mean litigation privilege has to be balanced against those issues.

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Alison Harvey

Alison Harvey

Alison Harvey is a barrister at No 5 chambers. She accepts both instructions from solicitors and direct access work. She regularly trains and lectures. She is Chair of Trustees at Kalayaan. She is a contributor to Fransman's British Nationality Law and to Macdonald's Immigration Law and Practice. A former General Secretary and then Legal Director of the Immigration Law Practitioners' Association, she has specialised in immigration, asylum, nationality, free movement and human rights for over 20 years, representing individuals and working on policy and legislation in both the the UK and overseas.