[2024] UKUT 178 (AAC)

Regarding the first aspect of ground 1, Mr Dally submits that it is a misuse of language to equate the phrase “explicitly states that the advice was taken some time ago” (the First-tier Tribunal’s words) with the phrase “we have previously sought legal advice on this matter” (the phrase used in the Council’s letter). Moreover, the legal advice was clearly taken before the Council had contacted DEFRA and the letter to the RSPCA was written only 37 days after DEFRA’s advice was received. From that chronology, all that could have been deduced with any certainty was that the Council sought legal advice some time before 19 February 2019 (the date of the Council’s letter) and it was irrational for the Tribunal to have interpreted the Council’s letter as explicitly stating that the advice was taken ‘some time ago’. Given the relatively recent introduction of the 2018 Regulations, that interpretation could only have been intended to convey that the advice related not to the 2018 Regulations but to the 1963 Act. That was not a supportable interpretation, given the actual words used in the Council’s letter. Mr Dally further argues that the only reasonable interpretation of the Council’s letter was that legal advice had been taken recently and in connection with the licensing regime under the 2018 Regulations (it now transpires that this was not so). The Tribunal’s unjustified interpretation of the Council’s letter dealt a severe blow to Mr Dally’s case that the Council’s misrepresentation was a factor adding weight to the public interest in disclosure of the withheld legal advice.

Mr Dally’s skeleton argument for the Upper Tribunal hearing identifies what he submits are significant differences between the 1963 Act regulatory regime and the 2018 Regulations. Mr Dally’s argument may be that these differences support his case that the Council represented that they had taken advice on the application of the 2018 Regulations. He also argues that the Council perversely decided that MDH’s activities were not licensable under the 2018 Regulations.

The second aspect of ground 1 concerns the First-tier Tribunal’s finding that “the Council had confirmed with DEFRA that its interpretation is correct”. The Commissioner’s submissions are built, submits Mr Dally, on the assertion that, while the Council did not discuss MDH specifically with DEFRA, its factual understanding is that MDH is a rehoming or stray dog reception centre and that was the reference point for DEFRA’s ‘confirmation’. Mr Dally argues that this supposed understanding ‘flies in the face’ of the evidence before the Tribunal. The Council’s letters to the MP and the RSPCA, written some 37 days after receipt of DEFRA’s advice, show that the Council believed that MDH was not just a rehoming, or stray dog reception, centre. The Council was also fully aware that MDH kennelled dogs on behalf of the Council for up to 24 hours, in return for a fee. No reasonable tribunal could have found that the Council sought advice from DEFRA regarding its and MDH’s actual kennelling arrangements.

Mr Dally rejects the Commissioner’s argument that, even if the First-tier Tribunal erred, its error made no difference to the outcome. The Tribunal made a finding of fact that the Council did not misrepresent the legal advice, and the conclusions in paragraphs 11 and 12 of its reasons flowed from that finding. Misrepresentation was at the heart of this case (it was the main plank of Mr Dally’s case that the public interest favoured disclosure) so that a flawed analysis of the misrepresentation question cannot be considered immaterial.

At the hearing, Mr Dally relied on the First-tier Tribunal’s decision in Crothers v Information Commissioner (EA/2018/0074) in support of the proposition that the inherent weight in maintaining legal professional privilege may be overcome where the content of legal advice has been misrepresented.

At the hearing, Mr Dally also argued that the following considerations added weight to the public interest in disclosure of the withheld information: