CO/8552/2012 Neutral Citation Number: [2012] EWHC 3957 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT Royal Courts of Justice Strand London WC2A 2LL Wednesday, 5 December 2012 B e f o r e: LADY JUSTICE HALLETT DBE MR JUSTICE COLLINS Between: MARK WILLIAM BENNEY Applicant v DEPARTMENT OF ENVIRONMENT FOOD AND RURAL AFFAIRS 1st Respondent TREASURY SOLICITORS 2nd Respondent

ComputerAided Transcript of the Stenograph Notes of WordWave International Ltd (a Merrill Corporation Company) 8th Floor, 165 Fleet Street, London, EC4A 2DY Tel: 020 7404 1400 Fax: 020 7404 1424 (Official Shorthand Writers to the Court) The Applicant appeared in person Mr O Sanders (instructed by the Treasury Solicitors) appeared on behalf of the 1st and 2nd Respondents JUDGMENT (As Approved by the Court) Crown copyright 1. MR JUSTICE COLLINS: This is a sad case. The applicant, a member of the bar,

seeks to pursue contempt proceedings against a number of employees of the Department for Environment Food and Rural Affairs and one employee of the Treasury Solicitor who was instructed to deal with his claim against DEFRA for unlawful dismissal. The application is based upon the alleged failure by DEFRA to comply with their disclosure obligations and in particular in relation to two documents which were material, it was said, to the claim being made by the applicant. 2. I do not propose to go into any great detail so far as the history is concerned. Suffice it to say the applicant was employed by the Treasury Solicitor from April 1992 until March 2002 when he transferred to DEFRA. He remained as an employee of DEFRA until dismissed in December 2009. In April of 2008, DEFRA introduced a new individual performance management system. The applicant considered this to be unfair, unjustified and indeed, unlawful. In essence, it was, he believed, a breach of the implied mutual duty of trust and confidence. He passed on his views via emails within the office. This was objected to. He was instructed not to use departmental emails or the departmental system. He failed to comply with that. In March 2009, he applied for, but was refused, permission for judicial review of the new system. He continued nonetheless to object to it and to raise and voice both in writing and no doubt orally his opposition. The result was that on 27 April 2009 he was suspended on full pay. He made an internal appeal as he was entitled to do, but that appeal was not upheld. On 24 November 2009, he received a letter. He had, in fact, been ill. The letter indicated that he would be able to return to work following his illness, but only if he complied with reasonable instructions and did not persist in his complaints about the new system. He indicated that he would behave in an appropriate manner, but in a number of emails which passed between him and those who were in charge of him, he did not put behind him, as he should have done, the complaints about the system. The result was that on 8 December he was dismissed because it was said that he had failed to give the necessary undertaking which had been required by the letter of 24 November. He then made the claim before an employment tribunal in relation to unfair dismissal. He made an application under section 128 of the Employment Rights Act 1996 seeking an interim payment on the basis that it was likely that he would establish that his dismissal was automatically unfair under section 103A of the Act because he was making protected disclosures under section 43B of the act. There were internal meetings held and there are memoranda of those meetings of 3 and 4 December 2009, between the letter of 24 November and his dismissal. He complains that there was a failure to disclose the relevant material in the form of those memoranda, that that could have affected the judge's decision and indeed, were clearly relevant to the claim to the proceedings before the tribunal. He did receive, but after the relevant hearing before Byrne HHJ; (that was the hearing seeking the interim payment) disclosure of redacted versions of the memoranda. It was not until he made an application under the Freedom of Information Act that he received it. This is after

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his unfair dismissal claim had been settled. It was settled on the basis that he received a substantial payment. 7. He has produced a document setting out 11 separate contempts, but they all essentially depend upon the same matter; namely, the failure to disclose the documents themselves and more particularly, the parts that were redacted. Having seen the documents, it is understandable why the view, even if it may have been wrong, was taken that the documents were covered by a combination of legal professional privilege and without prejudice, because there had been without prejudice discussions between the applicant, through his union representative, and the department. Furthermore, so far as the involvement of the Treasury Solicitor was concerned, the memoranda to an extent were indications of what was going to be sought by way of advice. I am prepared for my part to accept for the purposes of this stage of consideration, but I make no final findings, that there ought to have been disclosure of most, perhaps even all, of the relevant documents, but to say that is far from establishing that there is a basis for allowing contempt proceedings to be pursued. In order to establish contempt in circumstances such as this, it will be necessary to show that the failure to disclose was not only deliberate in the sense that the existence of the documents was known, but also, and this is crucial, that it was done knowing that they ought to have been disclosed and effectively, being a party, whether by one or more of those concerned in DEFRA or the Treasury Solicitor to an act which we know to be contrary to the requirement of disclosure to fail to disclose them. That, it seems to me, the applicant is unable to establish. He makes the point in addition that it was said that there were no notes made of the discussions. He says that that was clearly not correct in the light of the documents that have since been disclosed. But whether that information came as a result of a deliberate attempt to avoid having to disclose knowing they ought to have been disclosed or whether it was, regrettably, as sometimes happens in large organisations, due to a mistake is something which, in my view, cannot be known. Certainly, it is quite impossible in the light of the history of this matter to establish that there is even an arguable case, although that is not perhaps necessarily the test in these proceedings, that this was a question of deliberate and knowing failure to identify the existence in order to avoid the need to disclose. In all the circumstances, one can perhaps understand why Mr Benney is upset at the situation, but having read the documents, I am not able to see how their disclosure could have affected the decision of Byrne HHJ. It is the disclosure before him that is perhaps the most important because, as Mr Benney says, he was not able to establish his right to an interim payment. He would, he thinks, have been able to do so had Byrne HHJ seen these documents. I am afraid that for my part I am quite unable to accept that that is indeed the position. Mr Benney was asked what the purpose was behind this application at this stage. He accepts, of course, that he has a personal interest because he feels that he has not been

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treated properly in the way that the litigation has been conducted, but he asserts that there is a public interest, and I mention it as well, because of the importance of indicating that the obligation to disclose is of paramount importance. 13. That is wellknown. I do not doubt that DEFRA and indeed all government departments are fully aware of their disclosure obligations. Indeed, the Treasury Solicitor has relatively recently taken steps to ensure by way of a document that departments are fully aware of the obligations upon them. The court has, from time to time, made that entirely clear. It seems to me, I am afraid, that there really is, quite apart from anything else, no public interest requirement that this application should go ahead. It is not something which will do Mr Benney himself any good at this stage other than to, as he says, get a recognition that there was a failure to comply with the overall requirements of disclosure. In those circumstances, I am satisfied that this application is entirely without merit. Accordingly, I would refuse permission for it to go any further. LADY JUSTICE HALLETT: I agree. I am afraid it must be marked totally without merit, Mr Benney. MR JUSTICE COLLINS: Mr Benney, you are aware of the consequence of that marking. If you persist in making any further claims based upon these matters, you are likely to find yourself subjected to a Civil Restraint Order. That will do a member of the bar no good at all. LADY JUSTICE HALLETT: Step back from the edge, Mr Benney, please. THE APPLICANT: Yes. Thank you, my Lady. LADY JUSTICE HALLETT: Thank you very much.

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