[2024] UKUT 71 (AAC)

The final aspect of this ground of appeal is that the FTT failed to give adequate reasons for its conclusion as regards the likely effect of disclosure. This aspect is closely related to the previous one, as the FTT decision does not explain, in terms, why it did not adopt the stepped approach to decision-making advocated by the professors (see paragraph 41 above), in reaching its conclusion.

The authorities on adequacy of reasons make clear that “the extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject matter”. The quotation is from the general comments on giving reasons in Flannery v Halifax Estate Agencies [2000] 1 WLR 377; PLP relied on the sentences that follow, that say, where there is a straightforward factual dispute whose resolution depends simply on whose witness is telling the truth, it may be enough for the judge to indicate simply that he believes X rather than Y. But:

“where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain one he prefers one case over the other”.

Here, the issue was the likely effect of disclosure. Contextual and factual issues were not at issue. IC gave evidence of its view (and that of HO) of the likely effect of disclosure. PLP did not, in fact, produce evidence directly to the contrary, for the ‘not surprising’ reasons given in paragraph 39 above – instead, its witnesses provided a counsel of caution as regards too “broadbrush” an approach to making the evaluative judgement. This was not, therefore, the classic “intellectual exchange with reasons and analysis advanced on either side”, in the quotation from Flannery immediately above, in which the judge was to “prefer one case over the other”.

In my view, the reasons given at [54] and [55] satisfy the “adequacy” standard in the circumstances of this case. Overall, it is adequately clear why the FTT decision came to the evaluative judgement it did as to the likely effect of disclosure.

As for the fact that there is no express explanation of why the FTT did not adopt the approach to decision-making recommended by PLP’s witnesses, it seems to me sufficiently evident from the decision-making method which the FTT decision did use – see [54] and [55] – as well as the unchallenged factual context, as to why the FTT did not adopt that other approach. In short, the FTT took the view that the evidence before it was sufficient to support its conclusion. In context, I do not consider it an error of law that the FTT did not expressly lay out reasons for not following the “counsel of caution” approach advocated by PLP and its witnesses.

It will be evident from paragraph 48b above that I do not consider the FTT decision at [55] to have erred in law by “deferring” to HO.