BL-2023-000620 - [2025] EWHC 2465 (Ch)

Issue 3 is formulated as follows:

“The reasons why D exercised its Discretion in the manner that it did when reaching the Decisions taken in response to C’s requests for assistance in 2015 and 2018. The above to include:”

Mr Tolias proposes that there should be a sub- paragraph (a) as follows:

The MDU proposes that sub-paragraph (a) should be in the following form:

The parties are in agreement that the following paragraphs (b) to (f) should be included:

Mr Spearman placed some reliance on the remarks of the judges in R (Hussain) v Secretary of State for the Home Department [2012] EWHC 1952 (Admin) and Bucpapa v Secretary of State for Justice [2017] EWHC 1895 (Admin) [40] about comparisons between different decisions of the same decision maker. I accept Mr Krsljanin’s submission that those remarks are primarily directed at the original decision maker not being required to compare all its own previous decisions when making the decision under scrutiny by the court. However, I do accept that it is instructive that neither side’s counsel were able to find a case concerning a frequently used discretion where either disclosure relating to all other exercises of that discretion were ordered or the court had regard to or compared all other exercises of the discretion.

The MDU’s position is that no other case decisions are material to the claim, but it offers limited disclosure of the cohort of decisions reached on referrals to the committees on a similar criterion to that of Mr Tolias. The difference in wording between the parties is that Mr Tolias seeks disclosure of case summaries “and/or (ii) where the member notified the MDU of the event only after their membership had ceased.” The MDU’s position is that this extra wording would capture requests referred to the committees under different criteria to Mr Tolias’s requests, where no alternative insurance considerations are in play but where decisions were reached on the basis of other factors such as non-payment of subscriptions or criminal conduct and which could have no relevance to Mr Tolias’s requests.

Mr Tolias’s position is that the particulars of claim plead that the decisions took into account an irrelevant factor which was the fact that Mr Tolias had ceased to be a member and had left the MDU at the time of his requests. Since the defendant’s response in the defence is that while “membership status itself is not relevant, the circumstances of the request for assistance arising from the membership status may properly be relevant”, the timing of the notification to the MDU is relevant.

The MDU’s response to this is that the cohort of decisions of which it offers disclosure were referrals on similar grounds and specifically concerning former members. It says decisions on different referral grounds are not relevant and will obscure rather than clarify the position.