Georgina Wolfe appears in Covid Inquiry judicial review

7 July 2023

Division Court has handed down its judgment in R (Cabinet Office) v Chair of the UK Covid-19 Inquiry [2023] EWHC 1702 (Admin). The Court considered the proper interpretation of section 21 of the Inquiries Act and the validity of a section 21 notice issued by the Chair of the Inquiry, the Right Honourable Baroness Hallett DBE, to the Cabinet Office. The notice required the Cabinet Office to produce various WhatsApp messages dating between 2020 and 2022 exchanged between the former Prime Minister, the Right Honourable Boris Johnson, and numerous advisers and ministers.

Following the rolled-up hearing heard last week, the Court gave the Cabinet Office permission to apply for judicial review but held that the section 21 notice was valid and the Chair had not acted irrationally in issuing it. Although it was common ground that many of the messages caught by the notice were ‘unambiguously irrelevant’, about two-thirds of the messages related to a matter in question at the inquiry. The Court held that the fact that a section 21 notice will yield some irrelevant documents does not invalidate the notice or mean that the section 21(2)(b) cannot be lawfully exercised. The Chair of the Inquiry was entitled to take the view that the documents requested related to a matter in question at the inquiry as identified in the notice and her ruling.

This judgment will have major implications for many ongoing inquiries. It set out the scheme for determining whether a document relates to a matter in question at the inquiry. If a party is concerned about producing documents, some of which relate to a matter in question at the inquiry and some of which do not, the proper procedure is to make an application pursuant to section 21(4) on the basis that it is unreasonable to be required to produce documents which do not, in fact, relate to a matter in question at the inquiry. The judgment anticipates that while a Chair might accept such a claim at face value, more likely the Chair will examine the documents, without prejudice to the objection to produce them, and determine that claim, returning those ‘obviously irrelevant’ documents to the party.

Georgina Wolfe appeared for an Interested Party, the Rt Hon Boris Johnson, alongside Jason Pobjoy, and was led by Lord Pannick KC. She frequently appears in large inquests and inquiries and the public law proceedings arising from them.

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