[2025] UKUT 308 (AAC)

The issue before the First-tier Tribunal was whether disclosure of the Slides / the information within them to the world at large would constitute an actionable breach of confidence. Dealing with that exercise involved addressing questions of pure law, questions of simple fact and questions of mixed law and fact. Questions of mixed fact and law arose because the Tribunal was engaged in the hypothetical exercise of assessing whether disclosure of the Slides would constitute an actionable breach of confidence, which required it to make findings as to the relevant features of the law of confidence for that notional action.

The question of pure law for the First-tier Tribunal was the meaning of an ‘actionable’ breach of confidence. However, the parties agreed before the Tribunal, and still agree, that the legal meaning of ‘actionable’, as used in section 41 FOIA, is that an action for breach of confidence would be more likely than not to succeed.

The Upper Tribunal’s jurisdiction under the Tribunals, Courts and Enforcement Act 2007 is expressed in binary terms. Points of law fall within its jurisdiction, matters of simple fact do not. The 2007 Act does not, in terms, recognise mixed questions of law and fact. The approach I shall take is to ask whether the First-tier Tribunal’s determination of questions of mixed fact and law involved a legal misdirection as to the law of confidence.