Legal Viewpoint: Tribunal ruling on retail case tests scope of legal privilege

In a recent case involving competing retail proposals in Yorkshire, the Information Rights Tribunal considered disclosure of instructions to counsel in the context of the Environmental Information Regulations 2004.

The ruling involved planning applications for two possible supermarket sites in the North Yorkshire town of Malton. One site, owned by Ryedale District Council, was granted planning permission in 2014. This decision was quashed by the High Court in 2015. Refusal of permission on the competing third party site was then overturned on appeal.   

The local authority had instructed counsel to advise on the secretary of state calling in the applications for determination. A local resident requested disclosure of the instructions. The council refused and the Information Commissioner supported its position, applying the exception for disclosure of information provided in the course of justice where the public interest favours withholding information.  
On appeal, the tribunal allowed disclosure of the instructions pursuant to the regulations, which provide public access to environmental information held by public authorities. It found that they applied to the instructions to counsel, since they related to measures likely to affect the state of land.

The regulations contain an exception to disclosure where it would adversely affect the course of justice, including legal professional privilege (LPP). To apply, the public interest in maintaining the exception must outweigh the public interest in disclosing it. Ordinarily, instructions to counsel would be covered by LPP, but the tribunal concluded that the public interest favoured disclosure in this case.

It cited several considerations in reaching this view:

  • Considerable time – six years – had passed since the instructions were sent and counsel’s advice given. 
  • Advice was sought about general points of law, not particular facts. 
  • Ryedale's members and residents need to understand how call-in works and how the council might act in similar circumstances in future.
  • Disclosure was unlikely to deter the authority from seeking legal advice in the future, as LPP would still attract strong weight.
  • Given that Ryedale owned one of the competing sites, this case required maximum transparency.
  • Disclosure was unlikely to make Ryedale vulnerable to legal challenge.
  • The weight attached to confidentiality was diminished because Ryedale's members, including those opposed to the proposals, could have seen the instructions.
  • Transparency should be given more weight in this case because dealing with the disputes involved in the competing sites had been costly.
  • Finally, the arguments in favour of disclosure were at least as strong as those for withholding the information.  

Under the regulations, there is a presumption in favour of disclosure which is determinative in a finely balanced case such as this. While the tribunal’s decision rests on its facts, public bodies should be mindful of the regulations when dealing with planning applications and remember that legal professional privilege may not always prevail.

Amy Truman is a legal director at DLA Piper

Brooksbank v The Information Commissioner and Ryedale District Council

Date: 31 October 2019

Ref: [2019] UKFTT 2018_0226 (GRC)

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