AC-2024-LON-002644 - [2025] EWHC 2761 (Admin)

The Courts have in recent years been concerned to see public authority decision-makers redacting the names of officials from disclosed decision-making documents. The issue arose in the present case because of the redactions I encountered when pre-reading for the 15 May 2025 hearing. I forewarned the parties that I wished to understand the justification for the redactions.

Looking at everything I now know, I think the problem which arose was a function of Natural England’s virtuous and proper practice of making pre-action disclosure of decision-making documents. It was back on 19 July 2024 that there was a response to the Claimants’ pre-action letter. The Legal Services Team provided the decision-making documents, in line with Natural England’s duty of candour. They also thought about redactions. The July 2024 letter of response gave what Mr Luckhurst fairly described as a relatively broad-brush explanation. It said:

I see nothing wrong or inadequate in that response at that time. It was a point in time when there were no legal proceedings. The Court was not involved. There was no open justice consideration, just candour considerations. The Claimant’s team were able to push back as they felt fit, so far as candour was concerned.

Proceedings were then commenced on 2 August 2024. The previously disclosed documents were filed by the Claimants within their claim bundle. They were not put in evidence by Natural England. Anyone reading the then Judicial Review Guide 2023 at §15.5.2 would have seen this: “When a redacted or edited document is included in evidence, the fact that redactions have been made, and the reasons for them, should be made clear, preferably on the face of the redacted document”. The grounds for judicial review made reference to the fact that within the decision-making documents “names have been redacted”.

When I raised the issue of redaction ahead of the renewal hearing, Natural England responded with promptness and propriety. First, the unredacted decision-making documents were brought to the hearing and provided to the Claimants’ legal representatives, against an undertaking of no onward disclosure pending application to the Court. Second, Natural England informed the Court of its wish to make an application for a court order. An application was subsequently made on 23 May 2025. The scope of the redactions has been refined and refocused. It was not possible to deal with an application at the renewal hearing. The parties wished me, as the Judge who had dealt with permission and had raised the concern, to deal with this issue and the costs cap. They were prepared to wait until my diary allowed it.

The culmination of all of this is that Natural England has applied for an order which has the following features and implications. It is not opposed by the Claimants nor by the Secretary of State. It will enable the filing of the unredacted documents, as a confidential (unredacted) bundle, to which a tailored restriction will apply. The tailored restriction is that any member of the press or public who seeks permission to access the confidential (unredacted) bundle or any of its contents will trigger a notice requirement whereby the Court will consider whether to grant or refuse permission, only after first hearing from Natural England. Meanwhile, the Claimants’ representatives and – if needed – the Judge will have access to the confidential (unredacted) bundle, under suitably protective arrangements. They involve a confidentiality ring.

The Court is duty-bound to consider open justice and may need to raise or watch out for issues of its own initiative. Indeed, the Court is at its most vigilant when the parties are for their part agreed that information should be kept from the public: Manchester City FC Ltd v FA Premier League Ltd [2021] EWCA Civ 1110 [2021] 1 WLR 5513 at §56. This is why parties cannot contract out of their open justice obligations: R (MTA) v SSHD [2024] EWHC 553 (Admin) at §26.

I was entirely satisfied by the witness statement evidence, a revised detailed schedule exhibited by Natural England’s Director of Legal and Governance Anita Chib, and the submissions of Mr Luckhurst and Mr Butler, that the order sought is fully justified. It involves the measured, precautionary and proportionate protection of prior notice and the opportunity to be heard if access is sought: CPR 5.4C. I am satisfied that this limited derogation from open justice is necessary. On the face of it, there are “good and specific reasons” for a provisional protective approach: R (IAB) v SSHD [2024] EWCA Civ 66 [2024] 1 WLR 1916 at §§29, 36. Phone numbers have remained redacted, which is something which “will usually be permissible”: IAB at §28. The names of “junior” staff members whose role was “peripheral” have remained redacted, for two combined reasons. First, because there are concerns relating to risk and safety in the context of this area of decision-making. Second, because of the peripheral roles which means very limited relevance. The safety concerns link to what was said proactively in the letter of response. I have read the witness statement evidence of John Barrow, Natural England’s Principal Manager of Security. He has exhibited two internal policy instructions which relate to staff and show that the concerns are taken seriously within the organisation. He has illustrated why that is.

Reference was made in IAB to national security and other risks. A practical working illustration considering national security risks and peripheral relevance is R (Dana Astra IOOO) v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] EWHC 289 (Admin) at §101. An example considering commercial sensitivities and lack of relevance is R (Wilkinson) v Enfield LBC [2024] EWHC 1193 (Admin) [2024] PTSR 1532 at §267. I am not striking any final or determinative balance. That would be wrong in principle. It could foreclose on how an application by the press or public might be decided, if one is made. In this case, the question is more nuanced. What I am satisfied is necessary is the precaution that any application for the unredacted documents from the court records should trigger a prior right to be heard on the part of Natural England, so that an informed decision can be taken. The confidentiality ring arrangements between the parties are approved. I very much doubt whether the names would feature at the substantive hearing, or whether the Judge even needs the unredacted documents. I would expect that everything said at the substantive hearing and everything in the skeleton arguments and hearing bundles should be transparent and reportable. But these are matters for that Judge, if they arise.

There is, I think, a takeaway point from what happened in this case. Once proceedings are commenced, documents within the court papers which have been redacted need to be considered by the redacting party. That includes where they were disclosed at a pre-action stage and have been filed by another party. The Court needs assistance. There may need to be a reference to an explanation in a pre-action letter, which may need further focus. There may well need to be a witness statement: cf. R (XY) v SSHD [2024] EWHC 81 (Admin) [2024] 1 WLR 2272 at §141. There may need to be an application, raised promptly in the AOS. That is because there are now legal proceedings, there is now the open justice principle, and there is a Court needing assistance as to how to respect the open justice principle and protect any relevant interest.