[2024] UKUT 195 (AAC)

The evidence before the FTT was noted at [16-17]: oral evidence from Mr Coombs (who had an academic background in statistics) and his two witnesses, Alan Parker (a retired former director of education for a London borough and subsequently, in quasi-judicial roles in bodies including for the Office of the Schools Adjudicator, Ofqual and Qualifications Wales; he had also been a trustee of the National Foundation for Educational Research) and Luke Knightly-Jones (conducting PhD research into perceptions and impact of private tuition for 11+ exams in England); and from Sue Walton (consultant at TBGS) and David Hilton (head of admissions testing at GLA) on behalf of TBGS; and the hearing bundles.

[31-62] were under the heading “Key Facts.” As the sub-headings indicated, this consisted of findings about the arrangements for grammar school admissions in Buckinghamshire (i.e. the context for the 2019 exam); about the exam itself; about past papers, practice materials and a “familiarisation booklet” published by GLA; about tutoring; about the business and contractual relationship between TBGS and GLA; about the errors in the 2019 exam, the solution devised by TBGS and GLA, and related communications with parents and carers for the children who sat the exam, and the wider public; about the concept of “reliability”, in the context of statistics; and about what the PowerPoint material contained.

Having summarised the rival arguments, the FTT decision reasons were presented at [70-84]

Considering s41(1)(b) (whether disclosure of the undisclosed information to the public by TBGS would constitute a breach of confidence actionable by it or any other person) – being the element of s41 that was in dispute – the three sub-questions identified by Megarry J in Coco v AN Clark (Engineers) Ltd (cited at [24]) were looked at. It was decided, on the facts as found, that the undisclosed information (1) had the necessary quality of confidence and (2) was communicated to TBGS in circumstances importing an obligation of confidence (the first two sub-questions).

The third Coco v Clark sub-question – whether unauthorised use of the undisclosed information would be detrimental to the party communicating it (which, the FTT decision said, was GLA) – was considered by looking, in turn, at two arguments made by TBGS: the “tutor advantage argument” and the “competitor advantage argument”.

These two arguments are first mentioned in the FTT decision in a footnote to [64], which introduces them by saying that

The FTT decision reasons found (at [76]) the “competitor advantage argument” to have force because, in overview, the undisclosed information, it found (1) was commercially sensitive and (2) would give a competitor an unfair, one-sided competitive advantage.

The FTT decision reasons saw some, limited force in the “tutor advantage argument”: disclosure of the undisclosed information might be of some “marginal” (my word, not the FTT decision’s) advantage to tutors and their pupils; GLA in turn might suffer reputational damage as a consequence of the fairness of the exam being (or appearing to be) undermined.

Having thus concluded that disclosure of the undisclosed information would constitute a breach of confidence actionable by GLA, the FTT decision reasons turned (at [79]) to whether an action for breach of confidence could withstand a public interest defence. The reasoning referred to the “critical importance of education” and a “powerful public interest” in fostering well-informed debate on education; but considered this outweighed by (and here I reorder the reasons somewhat, to bring out the substance of the reasoning) (1) the public interest in protecting commercially confidential information (see [79(5)]) (2) the fact that neither TBGS nor GLA misled, or attempted to mislead, in their public pronouncements about the errors in the exam or the fairness of their solution to these, together with the fact that TBGS (with GLA’s permission) had, reasonably, disclosed some of the information requested by Mr Coombs (it being reasonable to do so, given the need to explain TBGS’s decision-making and reassure those affected, and the wider public).

The FTT decision reasons concluded (at [80]) that s41 was satisfied; this was enough to dismiss the appeal; however, the FTT decision reasons went on to consider s43, and found (at [82]) that “an appreciable risk of prejudice to the commercial interests of both GLA and TBGS would arise” if the undisclosed information were made public; in respect of GLA, this was for the same reasons as the FTT decision reasons found “detriment” to GLA in its s41 analysis; in respect of TBGS, this was because disclosure could result in TBGS changing the structure of the exam more frequently (and associated costs). As to the public interest balancing test under s2(1)(b), the FTT decision reasons referred to its s41 public interest defence reasoning (which it did not think was displaced by the “mild presumption in favour” of disclosure, when applying that test). It concluded that s43(2) applied.

The dissenting reasons reached a different view on third Coco v Clark sub-question. The “competitor advantage arguments” were said to be “hugely overstated”, due to the undisclosed information being “very narrow in scope” and relating to just one year’s exam; disclosure of the undisclosed information would not tell the competition “anything of real significance” – the exam content is new every year; there is mention at [87(4)] of paucity of evidence for certain matters. The “tutor advantage arguments” were said to rest on “no evidential basis” and to depend on assertion and speculation. It criticised certain “theories” (about tutoring strategies) of Mr Hilton in evidence (indeed, the FTT decision reasons also rejected some such “theories”, at [75(5)]; it is said that certain of TBGS’s witness’ evidence was “mere assertion wholly unsupported by any scientific or empirical evidence”; it praised the evidence of Mr Knightley-Jones, on the question of “tutors’ advantage”, as coming from someone “with conspicuous learning and an impressive command of the subject matter” ([86(7)]. The dissenting reasons saw no advantage to tutors as a result of disclosure of the undisclosed information.

The dissenting reasons went on to say that, even if the Coco v Clark test had been satisfied, an action for breach of confidence would have been defeated by a public interest defence. In the dissenting reasoning, the “strong public interest in protecting information communicated in confidence”, is outweighed by the public interest in “testing”, and fostering an informed debate about the fairness and appropriateness of, the solution devised by TBGS and GLA (and their public statements about it), given that it was speedily devised, and the exam errors were highly embarrassing to GLA. There was also public interest in facilitating an informed debate as to whether TBGS issued misleading information about the fairness of its solution to the errors in the exam; particularly where TBGS did not disclose that the “independent statistician” to which it referred at that time was someone who had worked for GLA between 1986 and 2010. These matters could not be assessed in a transparent and fair debate, without disclosure of the undisclosed information.

The dissenting reasons went on to say that, for similar reasons, the exemption in s43 was not made out: it had not been shown that disclosure of the undisclosed information would, or could well, give rise to risk of substantive harm to TBGS or to GLA; and the public interest balancing test favoured disclosure.

The FTT granted permission to appeal on all grounds set out in an application dated 8 January 2024 (and drafted by Mr Lawson on Mr Coombs’ behalf).