“LEGAL PROCEEDINGS DO NOT EXIST FOR THE PURPOSE OF PERMITTING PARTIES TO PUT IRRELEVANT MATTERS INTO THE PUBLIC DOMAIN”: EVIDENCE ON BEHALF OF THE DUKE OF SUSSEX IS CURTAILED

In  The Duke of Sussex, R (On the Application Of) v Secretary of State for the Home Department [2022] EWHC 682 (Admin)  Mr Justice Swift excluded irrelevant material in witness statements and other documents.  He also refused the claimant’s request that the fact of the exclusion of irrelevant material be kept secret.

“Legal proceedings do not exist for the purpose of permitting parties to put irrelevant matters in the public domain, and the court must be astute to ensure that proceedings, legitimately pursued, do not become the occasion to publicise irrelevant material. The Claimant relies on the open justice principle. But no part of that principle requires irrelevant material be the subject of a reasoned public judgment simply for the purposes of explaining why it is irrelevant and ought not to have been part of the proceedings at all.”

THE CASE

The applicant Duke is seeking a judicial review of certain decisions made in relation to his personal protection when he is in the United Kingdom.  Part of the application, and evidence in support is subject to confidentiality (because it concerns security).  The judge made certain orders in relation to confidentiality and anonymity.  The judge then went on to consider the position of irrelevant material that had been placed before the Court.

THE JUDGMENT ON THE EXCLUSION OF IRRELEVANT EVIDENCE

The judge observed that irrelevant evidence had been filed by the applicant and required submissions on why it should not be excluded.

(4) Irrelevant evidence

1. 1. I asked the parties to make submissions on the relevance of certain parts of the evidence filed in support of the Claimant’s claim: one paragraph in the Claimant’s witness statement; four paragraphs in the witness statement filed by Mr Robinson; and passages in five documents exhibited to the Claimant’s witness statement. My concern was that these matters were irrelevant or duplicative. Pursuant to CPR 32.1 the court has the power to give directions to control evidence in proceedings which includes the power to direct that a witness statement or exhibit be re-served omitting irrelevant or duplicative material.

1. 1. The Claimant accepted that one document was duplicative, and that a further document was irrelevant. These documents need not form part of the evidence in this case. The relevance of one of the five documents was satisfactorily explained and need not be further considered in this judgment.

1. 1. What remained in dispute was (a) the relevance of passages in two documents already contained in the exhibit to the Claimant’s statement; (b) whether the Claimant should have permission to add to the exhibit an additional document, produced during the private part of the hearing; (c) the relevance of paragraphs in the Claimant’s witness statement and Mr Robinson’s witness statement. The Claimant’s submission was that since the litigation is at an early stage (time has not yet come for the Secretary of State to file her Acknowledgement of Service and Summary Grounds of Defence), I should be cautious before forming any view that evidence filed is irrelevant. Such a decision might be proved wrong as the litigation progressed. For example, information that appeared irrelevant might become relevant in light of the defence to the claim. The Claimant also submitted I should not attempt to draw fine distinctions between relevant and irrelevant matters within a single document. Rather than attempt such a task it is better (so the submission went) to leave all evidence in place and assess the matter in the round when the time comes for the final decision on the claim.

1. 1. I accept that in principle a wait and see approach will be appropriate in many instances. However, much depends on the nature of the claim and the issues arising. It is important that this is a claim for judicial review. In these proceedings the court only assesses the legality of a decision by reference to the well-known public law principles. The court is not a finder of fact. Moreover, the primary focus is usually limited to matters such as what the decision-maker did, how the decision was taken, and the reasons for the decision. This makes it easier, even at an early stage in litigation, to take a realistic view on whether or not evidence is relevant.

1. 1. There is much less to be said for the submission that evidence already filed may turn out to be relevant in light of the defence to the claim. In this case there has already been detailed pre-action correspondence. That has helped identify the nature of the defence to the claim. In any event, if the defence to a claim requires further response from the claimant, including additional evidence, the claimant has the right to apply to file evidence in reply. There is no need to file evidence when the claim is commenced only on the off-chance that later in the proceedings it might become relevant. It may just as likely never become relevant.

1. 1. On consideration of the matters in dispute I have concluded that the evidence filed in support of the claim does include irrelevant evidence which for that reason is inadmissible and should be excluded from the proceedings. The detail of my reasons is in the Confidential Annex to this judgment.

1. 1. After the draft of this judgment went to the parties for the usual purpose of checking for typographical or other minor errors, the Claimant volunteered further written submissions to the effect that reasons for my conclusion that irrelevant evidence had been filed should appear in this part of the judgment, not the Confidential Annex. I do not accept this submission. Submissions on the relevance issue were made in the part of the hearing that took place in private because any other course would have defeated the purpose of the exercise. The Claimant did not suggest otherwise. The course the Claimant now suggests would require the publicly available part of the judgment to include reference to the substance of the irrelevant information. That too would defeat the purpose of the exercise while serving no public interest.

1. 1. Legal proceedings do not exist for the purpose of permitting parties to put irrelevant matters in the public domain, and the court must be astute to ensure that proceedings, legitimately pursued, do not become the occasion to publicise irrelevant material. The Claimant relies on the open justice principle. But no part of that principle requires irrelevant material be the subject of a reasoned public judgment simply for the purposes of explaining why it is irrelevant and ought not to have been part of the proceedings at all.

1. Next, the Claimant relies on the fact that the irrelevant material, having been excluded from the proceedings, would no longer fall within the provision to be included in the Order consequent on this judgment that the parties will not, without permission of the court, provide to any non-party any copy of any witness statement or exhibit filed in the proceedings. That submission is correct so far as it goes, but it says nothing to support the contention that irrelevant material need be the subject of detailed consideration in a public judgment, and for the avoidance of doubt, nothing in this judgment, and nothing that has occurred in these proceedings provides reason (for the Claimant or anyone else) to disclose the material now excluded from these proceedings.