Council Permitted to Withhold Litigation Costs Budget under Freedom of Information Act

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28 March, 2019

Norman Fearn v Information Commission (EA/2018/0124)

The First-tier Tribunal (Information Rights) has dismissed an appeal from a member of the public seeking information relating to the projected costs budget of an ongoing litigated case.

Mr Fearn asked the council for the following information:

  1. What costs have been incurred so far in this lawsuit?
  2. What further anticipated costs are included in the budget as the action proceeds?
  3. What provision has been made for a possible award against the Council if liability for the [respondent's] costs is imposed on the Council?

The Council replied to the request and provided information in response to question 1, gave a partial response to question 2 and refused to provide the remainder of the requested information, citing s42(1) exemption set out in the Freedom of Information Act 2000 ('FOIA'), which applies to information covered by legal professional privilege ('LPP').

Mr Fearn was dissatisfied and complained to the Information Commissioner. The Commissioner determined that the Council had correctly applied the s42(1) FOIA exemption to withhold the disputed information.

Mr Fearn proceeded to appeal the decision, contending that the information about the possible future costs of the litigation should not be a secret. The Tribunal considered the public interest test and concluded that a "broad benefit/risk analysis" favoured maintaining the exemption. If the council were to disclose its cost budget it would undermine the council's litigation strategy and give its opponents "a practical, or at least psychological, advantage". Potentially the disclosure might reveal the council's assessment of its own prospects and its litigation strategies. Such a decision would undermine the legal system and might ultimately prejudice the local community, if the disclosure resulted in it achieving a poorer outcome than if the exemption had been maintained.

Forbes comments

This case offers reassuring guidance to local authorities faced with similar requests under the FOIA for information relating to ongoing litigation. Ultimately, the timing of the request was the crucial issue, the Tribunal remarked that a request for information made after the relevant litigation had concluded was a "different proposition" as the public interest argument based on possible prejudice to current litigation would not be available.

For more information contact Sarah Wilkinson in our Insurance department via email or phone on 01254 662831. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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