HRH The Duke of Sussex v News Group Newspapers Limited
[2024] EWHC 1730 (Ch)
The Cabinet Office, R (on the application of) v The Chair of the UK Covid-19 Inquiry
6 July 2023
[2023] EWHC 1702 (Admin)
High Court
The government tried to stop a public inquiry from getting Boris Johnson's WhatsApps, arguing some messages were irrelevant. The court said the inquiry could ask for the messages, and there's a process to deal with any irrelevant bits later.
Key Facts
- •The Cabinet Office challenged a section 21 notice from the UK Covid-19 Inquiry Chair, demanding unredacted WhatsApp messages and diaries of Boris Johnson and his advisor, Henry Cook.
- •The notice sought documents potentially relevant to Module 2 of the inquiry, focusing on political decision-making during the Covid-19 pandemic.
- •The Cabinet Office argued that a significant portion of the requested material was 'unambiguously irrelevant'.
- •The Inquiry Chair rejected the Cabinet Office's application to revoke the notice, asserting the power to request potentially relevant material.
- •The Cabinet Office sought judicial review of the Chair's decision.
Legal Principles
Inquiries Act 2005 powers are exercisable only within the Inquiry's terms of reference.
Inquiries Act 2005, section 5(5)
Inquiries have latitude to 'fish' for documents; a request doesn't need to be limited to only demonstrably relevant material.
R(EA) v The Chairman of the Manchester Arena Inquiry [2020] EWHC 2053 (Admin); Douglas v Pindling [1996] AC 890; Ross v Costigan (1982) 41 ALR 319
The Chair of the Inquiry, not the document holder, ultimately decides document relevance.
Inquiries Act 2005, section 21
Section 21(4) allows a challenge to a notice if compliance is impossible or unreasonable; this doesn't invalidate the entire notice if some material is arguably irrelevant.
Inquiries Act 2005, section 21(4)
Analogy to civil procedure disclosure is loose, as inquiries have different aims and processes. However, the principle that a request can include some irrelevant material remains valid.
Compagnie Financiere du Pacifique v Peruvian Guano (1882) 11 QBD 55; GE Capital v Bankers Trust 1995 1 WLR 172
Outcomes
Permission granted for judicial review.
The case raised important questions on the interpretation of section 21 of the Inquiries Act.
Section 21 notice deemed valid.
The notice sought documents relating to matters in question, and the possibility of some irrelevant material doesn't invalidate the request; section 21(4) provides a mechanism for addressing individual concerns about specific documents.
Inquiry Chair's actions deemed rational.
The Chair acted within her powers to seek potentially relevant documents. The existence of a mechanism under section 21(4) protects against the production of irrelevant documents.
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