[2025] UKUT 308 (AAC)

For the above reasons, Ground 2 is not made out.

The main problem faced by the Appellant’s Ground 2 arguments was that, before the First-tier Tribunal, her case on the application of the law of confidence was little developed and relied almost entirely on the argument that the imposition of a duty of confidence would be incompatible with implied parental rights under section 405 EA 1996.

The legal meaning of ‘actionable’ in section 41 FOIA is a matter of law, and the parties agree what it means. When a tribunal turns to decide whether, in a particular case, disclosure of information to the world would constitute an actionable breach of confidence it is deciding a question of fact (or mixed fact and law). There is only one opportunity to argue the facts, which is before the First-tier Tribunal. It is possible that, had the arguments that Mr Moss deployed before the Upper Tribunal, been put to the Tribunal it would have arrived at a different decision. I certainly would not discount the possibility that the cumulative effect of Mr Moss’ submissions might have convinced a first-instance tribunal that there was sufficient doubt as to the viability of a claim for breach of confidence that section 41’s requirement for an actionable breach was not satisfied. But Mr Moss’ submissions were not those put to the Tribunal and that omission cannot be remedied now on an appeal limited to points of law.