AC-2025-LON-000559 - [2025] EWHC 1984 (Admin)

The Claimants’ principal concern is that the claim should not be conducted in a way which exposes them to the reputational risk which materialised as a result of the execution of the unlawful search warrants and the unlawful surveillance, and the publicity which resulted. Part of that concern is that, even though there are two relevant judgments which are public, that reputational risk will revive if the claim is linked publicly with that earlier litigation, and with the Claimants. That concern is reinforced by the possibility that all the material which was before the IPT in the later litigation, and the IPT’s decisions, which were considered in private hearings and private judgments, could become public in the claim.

The nub of the Decision is that it is for the Administrative Court to manage its own proceedings, and to decide for itself the extent to which its proceedings should be in private, or otherwise protect the privacy interests of the Claimants.

We will not express any view on the merits of the Claimants’ challenges to the reasoning in the Decision, for two reasons. First, we can reach a decision on this application without doing so. Second, there is an inevitable and significant overlap between the Claimants’ arguments about the merits of the reasoning in the Decision, and the arguments on which they will rely in order to persuade the Administrative Court to continue to hold proceedings in the claim in private. That overlap means that if this court can avoid expressing any such view, it should do so.

It is common ground that the jurisdiction and powers of the Administrative Court and of the IPT are different. Rule 7 of the Investigatory Powers Tribunal Rules 2018 (2018 SI No 1334) is a significant qualification of the principle of open justice and does not apply to the Administrative Court. The IPT has a defined statutory jurisdiction which does not include jurisdiction to decide anything about proceedings in the Administrative Court proceedings. Any views it were to express about what privacy protections might be appropriate in proceedings in the Administrative Court would and could have no effect on the Claimants’ legal position.

As we have said, the Claimants’ concession that it is for the Administrative Court to decide what, if any, privacy protections are necessary in the claim and are consistent with the principle of open justice is plainly correct. Once that it is accepted, it follows that it is for the Administrative Court to decide all the issues which are relevant to the Claimants’ claim for privacy in the claim, including the Claimants’ primary contention that the privacy of the documents used in and generated by the proceedings in the IPT is absolute.

The IPT’s existing privacy order has not been affected by the Decision, as is clear from the IPT’s reasoning. So the Decision has had no effect on that aspect of the Claimants’ legal position. The Claimants correctly conceded that the Administrative Court is not bound by the IPT’s answers to the questions. The fact that the Administrative Court is not bound by the IPT’s views means that those views do not and cannot change the Claimants’ rights in any way, or have any other effect on the Claimants’ legal position.

We reject the submission that the Administrative Court will be ‘influenced’ by the IPT’s answers, if that submission is intended to suggest that the Decision has some legally relevant effects. First, the IPT is subordinate to the jurisdiction of the High Court. Indeed, it is that very jurisdiction which the Claimants have invoked in this application for judicial review of the Decision. The Administrative Court is not subordinate to the IPT. Second, once it is accepted that the Administrative Court it not bound by the answers, it follows that it is for the Administrative Court to make its own decision about what privacy protections, if any, are appropriate in the claim. The Administrative Court, having asked the questions, will no doubt take the answers into account as relevant considerations, but no more than that. That is not in any way unlawful.

The considerations we have described in the two previous paragraphs mean that the Decision is not amenable to judicial review.

If that is wrong, the next question is whether, on the unusual facts of this case, this court should make the remedy of judicial review available in its discretion. Three considerations, in particular, show that it should not do so.

First, if, contrary to our primary view, the Decision has any effect on the Claimant’s rights, that effect is vestigial.

Second, the Claimants can put all their arguments to the Administrative Court in the claim, with the added benefit of an opportunity to argue that Noonan is irrelevant to the issues, an opportunity which, they say, they were denied in the IPT.

Third, the Administrative Court is much better placed than the IPT, or this court on an application for judicial review of the Decision, to anchor the arguments about privacy in the detail of the claim. The Administrative Court is fully familiar with the claim (in contrast to the IPT, and to this court on this application for judicial review). In other words, the Administrative Court, not this court, is the suitable (and indeed, the only) forum for the resolution of those issues. It will be for the Administrative Court, having heard argument, to design the protections which are appropriate for the interests which are at stake in the claim, consistently with the principle of open justice. If the Administrative Court’s approach to privacy is wrong, the Claimants can then appeal to the Court of Appeal, with the benefit of the reasoning of that appropriate forum on the issues. Indeed, that was the Claimants’ position when they applied for permission to appeal against Order 5 (see paragraph 5(2)(iii) of their skeleton argument in support of that application).

The further concerns which we have described in paragraph 31, above, evaporate if our first two broad conclusions are right.