The Secretaries of State for Defence, the Dwelling Workplace and Overseas, Commonwealth and Growth Affairs have succeeded in an enchantment in opposition to three orders made by the Excessive Court docket in litigation arising from the Afghan knowledge breach which got here to mild final 12 months after the superinjunction was lifted. Two of the orders had been a normal path meant to cowl all comparable instances and the third was a compulsory order for the minister to vary a coverage “forthwith” after no motion to take action had been taken months after a judgment discovering that this wanted to be accomplished. The case is R (RA & Anor) v Secretary of State for Overseas, Commonwealth and Growth Affairs [2026] EWCA Civ 3.
Background
All three of the orders underneath enchantment had been made by the Excessive Court docket following points with the conduct of the Ministry of Defence.
For the primary two orders, in two separate instances it had been accepted by the defendants (as they then had been) that officers on the Ministry of Defence had misled the courtroom following “critical breakdowns in communications” that means that the officers instructing the Authorities Authorized Division in addition to counsel had been unaware of fabric info. This meant that all the defendants had been unable to adjust to a beforehand agreed courtroom timetable.
The decide closely criticised the conduct of the Ministry of Defence officers, stating that:
What the CLOSED witness assertion presents is an image of civil servants who had been apparently solely reckless as as to if the purposes to the courtroom introduced a whole and correct image of the explanation why the purposes had been made. It is a failure of essentially the most grievous order. It’s merely surprising that it has occurred serially on every of the three events I’ve talked about in these two instances and beggars perception.
The decide famous that there have been comparable claims within the Administrative Court docket and expressed concern that these instances would have comparable failings.
The courtroom proceeded to make a normal path in every of the instances to cowl any utility made by the three Secretaries of State “to differ any path made in any ARAP-related Excessive Court docket case involving a closed materials process”. The courtroom ordered that any such utility should be “supported by a witness assertion made by a civil servant of applicable seniority” addressing sure factors, together with a proof as to why compliance was not doable.
These two instances had been subsequently conceded and the claimants granted depart outdoors the principles. The judicial evaluations had been withdrawn.
The third order underneath enchantment right here was made after the decide stated that he was “solely unimpressed by the in depth delay” in amending the Afghanistan Response Route coverage consistent with R (CX1 and MP1) v Secretary of State for Defence [2024] EWHC (Admin) 892 (our write up). In that case, the Secretary of State for Defence had been advised to rethink the strategy to figuring out folks inside the highest danger group and to tell the courtroom of the end result.
The choice in CX1 was made in June 2024 and following a listening to in October 2024 the decide made a compulsory order that the Secretaries of State for Defence and the Dwelling Division “will forthwith put together a revised model of the ARR coverage assertion”.
The enchantment
The Secretaries of State appealed all three of the above orders. There have been a number of grounds of enchantment.
The Court docket of Enchantment began by saying that:
It bears repeating that the state of affairs created by the information breach and the super-injunction was wholly irregular. The courtroom performed a vital position in making certain that justice may nonetheless be accomplished to the group of people who had been affected. As Choose in Cost of the Administrative Court docket, the decide was centrally involved with this endeavour and we strongly endorse his dedication to upholding the overriding goal of dealing justly with these extraordinarily delicate instances.
For the primary two orders, the courtroom allowed the enchantment on the primary floor, which was that the decide “doesn’t have the ability to make (a) an order in a case that isn’t being performed by them, or (b) an order in a case that doesn’t but exist, or (c) an order that considerations the conduct of a non-party”. The Court docket of Enchantment stated that:
the decide was clearly conscious that he was making a most uncommon type of order, he didn’t try to establish the ability that he was exercising. We have now subsequently needed to search justification and we now have not discovered it within the respondents’ arguments. Even within the irregular circumstances that then prevailed, the imposition of a normal path went past the correct use of the courtroom’s case administration powers.
The courtroom recommended that a greater various for the decide would have been to make the order requiring a witness assertion within the particular instances accompanied by a separate CLOSED judgment stating that he anticipated the related Ministers to attract the courtroom’s consideration to that order at any time when an extension of time was sought in every other Afghan knowledge breach case.
Addressing the third order, the Court docket of Enchantment stated that though “the intention was solely to replicate the impact of CX1” the making of “a compulsory order requiring a minister to undertake a coverage nonetheless transgressed a basic boundary between the position of the courtroom and the position of the chief”. Additional, the courtroom gave no advance discover that it meant to make such an order. The enchantment was additionally allowed right here.
