Foxley v Ministry of Defence - PII Application Ruling

| | [Home ]
[Databases ]
[World Law ]
[Multidatabase Search ]
[Help ]
[Feedback ]
[DONATE ] | |
| # England and Wales High Court (King's Bench Division) Decisions | | |
| You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >>

  Foxley   v Ministry of Defence & Ors (Re PII Application) [2026] EWHC 673 (KB) (19 March 2026)

URL: https://www.bailii.org/ew/cases/EWHC/KB/2026/673.html
Cite as:
[2026] EWHC 673 (KB) | | |
[New search ]

[Printable PDF version ]

[Help ]

| | | Neutral Citation Number: [2026] EWHC 673 (KB) |
| | | Case No: KB-2024-001035 |
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION

| | | Royal Courts of Justice
Strand, London, WC2A 2LL |
| | | 19 March 2026 |
B e f o r e :

MR JUSTICE CAVANAGH

Between:
| | Lt Col Ian Foxley | Claimant |
| | - and - | |
| | (1) Ministry of Defence
(2) Department for Business and Trade
(3) GPT Special Project Management Limited
(4) Airbus SE | Defendants |

**Derrick Dale KC, Russell Hopkins and Grace Corby (instructed by Leigh Day) for the Claimant
Bilal Rawat KC, John Goss, Emma-Louise Fenelon, Karl Laird, and Gareth Rhys (instructed by the Government Legal Department) for the First and Second Defendants
Richard Kovalevsky KC (instructed by Oliver Rawkins of Reed Smith) for the Third and Fourth Defendants

Hearing dates: 17-19 March 2026**

HTML VERSION OF JUDGMENT ON PII APPLICATION ____________________

Crown Copyright ©

1. Mr Justice Cavanagh:
3. This is my ruling on PII application which were made in these proceedings by the First and Second Defendants ("the Government Defendants"). I gave this ruling orally, in open court, on 18 March 2026.
5. During the course of 17 March 2026, I heard argument and reviewed evidence in relation to the PII application made by the Government Defendants. Much of the time was spent in Closed session.
8. During the course of the Closed session, I heard submissions on the law, and my attention was drawn to each passage within a document for which PII was claimed, along with the explanation for it.
11. In advance of the hearing, legal submissions and the gist of the Government Defendant's arguments in favour of PII were also set out in Open documents, which were shared with the other parties. These documents included an Open version of the Ministerial Certificate and an Open version of the Damage Assessment. I have also seen and read Closed versions of the Ministerial Certificate and the Damage Assessment which, for obvious reasons, where not shared with the other parties.
14. After the Closed session was over, I heard submissions in Open from Mr Derrick Dale KC, leading counsel for the Claimant. His position on behalf of the Claimant in relation to the PII application was broadly neutral, recognising that he was not privy to the Closed material or to unredacted versions of the passages in respect of which PII was claimed. He did not challenge the review of the law that was set out in the Government Defendants' Open submissions. However, he sought to assist the Court by making a number of points and by emphasising several matters. On behalf of the Government Defendants, Mr Karl Laird of Counsel briefly made some points in response on an Open basis. There was no request to return to a Closed hearing. On behalf of the other two Defendants, GPT and Airbus, Mr Richard Kovalevsky KC adopted a neutral position and made no submissions.
17. I also heard submissions, before moving into Closed session, from Mr Crosby, a member of the Press. I will return to them in a moment.
20. By the time the submissions on PII had concluded, it was after 4pm, and so I said that I would consider the submissions overnight and would announce my decision this morning. In order to do so, I went briefly into Closed session first thing on 18 March 2026. I stress that this was not in order to enable the Government Defendants to make any further submissions to me. It was solely to check that the brief reasons that I now give would not themselves give rise to any difficulties as they are given on an Open basis.
23. I have decided to grant the Government Defendants' PII application in its entirety. It would not be appropriate for me to give detailed reasons for this in Open court. However, I am satisfied that the material that is the subject matter of the application is relevant, that there is a real risk of serious harm to the public interest if the material was to be disclosed, and that the balance of competing interests, sometimes known as the Wiley balance, is firmly in favour of withholding disclosure of the material.
26. I have carefully borne in mind the submissions that were made to me on behalf of the Claimant, both those made by Mr Dale KC, in his oral submissions, and those made by the Claimant's solicitors in a letter dated 2 March 2026, which they made having reviewed the Open material relating to the PII application.
29. Mr Dale KC's submissions focused on three issues, each of which related to the Wiley balance. These were:
32. (1) Amongst the issues that the Minister and the Court must bear in mind are the seriousness of the claim and whether the Government is a party to the proceedings or is alleged to have acted unconscionably. Mr Dale KC emphasised that the allegations of conspiracy concern allegations of corruption, or complicity in corruption, against the two Government Defendants, not just against GPT, the third Defendant. He also reminded me that this should be borne in mind when considering the extent to which the passages that are the subject of the PII application contain material that may be of significance to the Claimant's case;
33. (2) He reminded me that the Damage Assessments had been made in 2022, for the purposes of the earlier criminal proceedings involving GPT and the two named individuals. He said that I should carefully consider how far, if at all, the risks of damage that were identified in 2022 are still current; and
34. (3) He said that I should also take account of what is already out in the public domain. He drew my attention to passages in the sentencing remarks of Bryan J in the criminal proceedings against GPT, dated 28 April 2021, and to an agreement between GPT and the SFO as regards the factual basis for sentencing, which described the conspiracy to pay bribes to which GPT pleaded guilty, named those said to have received bribes, and made reference to the extent of knowledge of the MOD. His central point was that, when considering whether particular disclosures meet the PII test, the Minister and the judge must bear in mind whether the potential damage is lessened or removed because the material is already in the public domain.
36. I have borne all the submissions made to me by Mr Dale KC carefully in mind. I have considered them alongside the evidence and submissions that I received in closed session. I am fully satisfied that there are strong grounds for PII in relation to the materials concerned, even after taking those submissions into account. For reasons that will be obvious, I cannot give a detailed explanation for this conclusion at an Open hearing, beyond saying the following: In coming to this conclusion I have, amongst other considerations, taken account of the serious nature of the allegations made by the Claimant, including serious allegations against the Government. Also, having seen the material, I am satisfied that it is of marginal relevance to the Claimant's case and that the withholding of it will not prejudice his claim, or his position in relation to the summary judgment and jurisdiction arguments by the Defendants. I have taken account of what was said in Bryan J's sentencing remarks, and I have considered the risks to the public interest as at the present time.
39. I cannot go any further than this in Open session.
42. I have also taken account of the oral submissions made by Mr Crosby, a member of the Press, to the effect that there might be a way of protecting the public interest which would have less of an impact upon the principles of open justice, consisting of a hearing at which representatives of the press are allowed to be present and take notes, on the basis that their notes will be taken from them, and that reporting restrictions will apply unless and until those restrictions are lifted.
45. I have carefully considered Mr Crosby's argument. I am grateful to Mr Crosby for raising this point, but it is clear to me that the course of conduct that he proposes would not be practicable in the circumstances of the present case and, moreover, would not promote open justice, because there are no realistic circumstances in which disclosure of the material would cease to present a serious risk to the public interest at some point in the future, or in which the Wiley balance would shift. Accordingly, even if representatives of the Press were permitted to see the material, reporting restrictions would bite indefinitely, and they would never be able to publish or report or relay their contents.
48. Accordingly, I grant the PII applications in their entirety. An order will be drawn up to reflect this.

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: https://www.bailii.org/ew/cases/EWHC/KB/2026/673.html