Disclosure of documents the subject of a discovery order is a contempt of court

Appeal on a point of law pursuant to s.42 of the Freedom of Information Act 1997 ("the Act") against the decision of the respondent - the appellant was the largest shareholder in an English hotel group - the appellant said that a hostile takeover bid was launched by two individuals which was vigorously opposed by the appellant - this led to litigation in England and Wales in 2012 - appellant alleges that as part of the individuals' strategy in pursuing the takeover bid, in 2011 they sought to acquire certain personal and corporate loans of the appellant with a financial institution - by letter in August 2012, the appellant requested from the notice party access to records concerning him or his business or personal loans held by the notice party - appellant indicated that he wished to access any records concerning an approach concerning anyone seeking information about his loans of lobbying for the opportunity to acquire personal or business loans in which he had an interest - in September 2012, the notice party responded to the appellant's request for information by enclosing a tabulated schedule of records - there were 19 records, and the notice party refused access to 13 of the records and redacted the other 6 - appellant sought an internal review of the decision - some redactions were then removed - an officer of the respondent during enquiries advised a representative of the appellant that a release of records under the Act could be contempt of court if amounting to a possible breach of the implied undertaking under discovery, if the records had been provided on foot of such an order - there is a decision of the respondent that it is a rule of law that a party obtaining the production of documents by discovery in an action gives an implicit undertaking to the court that they will not make any use of the documents for anything other than the purpose of the action - respondent's officer went on to explain her understanding that an order for discovery had been made against the notice party, and that most of the 19 records the subject of the FOI request were provided in response to the discovery order - appellant's sole argument in support of the release of the disputed records was that same was in the public interest - it was not disputed that records 6-16 were the subject of an order of discovery obtained by the appellant - the respondent's decision was given in November 2011 and explained that certain information was refused on the basis that it contained certain competitive commercial information - certain records had been publicly disclosed in the court of litigation in the HIgh Court of England and Wales - the Act requires the Court to consider whether the public interest would be better served by granting than refusing the request - the notice party had stated that the release of redacted details would not meaningfully advance the public interest considerations of openness and transparency - the public interest is served to some extent by the release of the redacted record - the respondent noted that the notice party had informed her that records 6-16 had been provided by it to the appellant pursuant to an order for discovery - the Court ought not to interfere with the respondent’s decision to discontinue his review of the decision made by the Department in this case unless it considers his decision to fly in the face of fundamental reason or common sense - the standard to be met by an appellant in a s.42 appeal is virtually indistinguishable from that applied by the court in judicial review matter - a s.42 appeal is not a de novo hearing but is an appeal on a point of law - no error of law was demonstrated by the appellant in the respondent's approach to record 5 - as regards records 6-16, the respondent was bound to apply the previous decision of this court that disclosure of documents the subject of an order for discovery, whenever made, is a contempt of court.