Coal-mining licence – Determination of applications – Procedural fairness – Appellant applying for licence to respondent authority – Respondent preferring rival application – Review – Whether fairness requiring respondent to disclose details of rival application to appellant – Appeal dismissed
The respondent body carried out statutory functions in respect of the licensing and management of coal mining under the Coal Industry Act 1994. The appellant, a special vehicle company incorporated in 2004, applied to the respondent for a licence and demise of coal in an area of South Wales that contained a large quantity of unmined coal and coal-bed methane. The application included detailed commercial and technical data, particulars of the proposed market and the company’s technical expertise. The respondent advertised the fact that it had received the application. Subsequently, other companies submitted applications, one of which was accepted by the respondent in preference to that of the appellant. The respondent sent a decision letter addressed to the appellant, giving brief reasons for its decision, which included a higher level of certainty that the other company would be able to deliver the project and the fact that it had a ready market for the coal. The appellant applied for a review of that decision. The respondent supplied no further documentation to the appellant prior to the review hearing, concerning its decision to prefer the other company’s application. Following the review, the original decision was confirmed and more detailed reasons given. It subsequently confirmed that the appellant’s application would have been accepted had the other application not been received.
The appellant applied for judicial review of the respondent’s decision. It contended that the decision-making process since had been unfair, inter alia, the respondent’s procedure should have provided for details of the rival application to be disclosed to the appellant. The claim was dismissed in the court below and the appellant appealed.
Held: The appeal was dismissed.
Although the requirements of fairness would vary according to context, the question of what fairness required in a particular case was not a mixed question of fact and law that admitted various different conclusions, and on which the judge’s assessment should not be disturbed unless the appeal court were satisfied that he had erred in principle. The reach of the duty was a question of principle decided by the court in the exercise of its responsibility to set procedural standards for public decision-making: Designers Guild Ltd v Russell Williams (Textiles) Ltd (t/a Washington DC) [2001] 1 WLR 2416 distinguished.
Although ins some cases fair procedure required material or information that belonged to one party to be disclosed to another in order for it to know the case against it, a distinction had to be drawn between a right to know the details of a rival’s case and a right to know the decision maker’s concerns about one’s own case. In a competition case, fairness required that: (i) an applicant be told the substance of the decision maker’s concerns about its own case; and (ii) every applicant be treated alike. Therefore an applicant was entitled to know the decision maker’s concerns about its own case, but not the details of its rival’s case. It would be unfair if one applicant saw a rival’s bid without the rival seeing his. Moreover, if every applicant saw the bid of every other competitor and was entitled to comment and challenge, the decision-making process would be hugely prolonged and complicated. The respondent’s procedure met the requirements of fairness: R (on the application of Asha Foundation) v Millennium Commission [2003] EWCA Civ 88 considered; Ex parte Al-Fayed (No 1) [1998] 1 WLR 763 and Hadmor Productions v Hamilton [1983] 1 AC 191 distinguished.
Robert Griffiths QC and Andrew Tabachnik (instructed by John Morris) appeared for the appellant; Christopher Vajda QC and Josh Holmes (instructed by Nabarro) appeared for the respondent.
Sally Dobson, barrister
