Andrew Hale-Byrne v The Secretary of State for Business and Trade & Anor

By these proceedings, the Claimant, Andrew Hale-Byrne, seeks damages, aggravated damages, and exemplary damages from the Secretaries of State for Business and Trade and for Foreign, Commonwealth and Development Affairs. The causes of action set out in the pleadings are particularised as follows: “various torts and violations of human rights”, namely misfeasance in public office, breach of article 6 of the General Data Protection Regulations (“the GDPR”), breaches of articles 3, 8 and 18 of the European Convention on Human Rights (“the Convention”) and breach of privacy “under the Human Rights Act”.

By order dated 24^th January 2024, Chamberlain J made a declaration that these are proceedings in which a CLOSED material application might be made to the Court in accordance with s.6 of the Justice and Security Act 2013 (“the 2013 Act”).

On 15^th March 2024, the Defendant Secretaries of State made an application under s.8 of the 2013 Act for permission to withhold sensitive material from the Claimant and his representatives. On 19^th February 2025, Bourne J acceded to that application.

By the application currently before the Court, which was issued on 24^th February 2024, the Defendants seek summary judgment in accordance with CPR 24.3 on the grounds that the Claimant has no real prospect of success and there is no other compelling reason why the case should be disposed of at trial.

Before addressing the substance of that application, I deal with a flurry of recent applications advanced by the parties in the run up to the hearing.

A second application under s.8 was issued by the Defendants, shortly before the present hearing, in respect of further sensitive material. In response, the Claimant sought an OPEN statement of reasons provided to support that application. I granted the Defendants’ application essentially for the same reasons as were given in OPEN by Bourne J on 19^th February 2025. It is not possible, consistent with the obligation placed on the Court by CPR 82.2(2), to provide any further details of that application or to set out the reasons advanced in support of it.

On the morning of the hearing, I was informed that the Claimant had, the previous evening, issued an application for a “re-evaluation” of the earlier orders made pursuant to sections 6 and 8 of the 2013 Act, for revocation of those orders and for permission to rely on a letter dated 4^th November 2025 which referred to a posting on the website “X”. I granted the application to rely on the letter, although it is fair to say that it was of little significance in the argument which followed.

The argument advanced on behalf of the Claimant, that it would be appropriate for the Court to “re-evaluate” the Court’s previous orders, was based on the assertion that the Security Service must have been involved in the decisions under challenge in these proceedings. It was argued that the decisions of the Court of Appeal in HM Attorney General v BBC [2025] EWHC 1669 (KB) and of the Investigatory Powers Tribunal (“IPT”) in Beth v Security Service [2025] EWIPTrib 8 required the Court to adopt a much more sceptical approach to decisions of the Security Service and to subject them to much closer scrutiny than had hitherto been the practice.

I decline to subject the previous decisions of the Court to “re-evaluation”. The BBC and the Beth decisions are of the greatest importance in cases involving the Security Service, but they do not mandate the re-evaluation of every previous decision under s.6 or s.8, or of the particular decisions in this case. By s.7 of the 2013 Act, the Court is required to keep under review any s.6 declaration, and I will do so here. In so doing, I will pay careful attention to the observations of the Divisional Court in the BBC case and of the IPT in the Beth case. But there is no justification for reconsidering those decisions ab initio.

The Claimant has also issued an application for an order that he be permitted to add Lord Darroch of Kew as third Defendant. I address that application at the end of this judgment.

The factual background to this claim can be shortly stated.

Between 2012 and September 2015, Sir Kim Darroch served as the Prime Minister’s National Security Advisor. In January 2016, he was appointed as the British Ambassador to the United States.

In August 2017, the Claimant, who had previously worked for the Ministry of Defence, began work as a civil servant for the Department for International Trade (now known as the Department for Business and Trade, the Second Defendant).

On 6^th July 2019, the Mail on Sunday newspaper published an article in which it was said that the paper had seen “secret cables” in which Sir Kim had described the then president of the United States, Donald Trump, as “inept”, “insecure” and “incompetent”. The article described as “the most incendiary paper” a letter sent to Sir Mark Sedwill, then the Prime Minister's National Security Adviser, on 22^nd June 2017. The article is attributed, on its face, to a journalist called Isabel Oakeshott, but the Claimant asserts that she wrote it together with another journalist, Mr Steven Edginton. It was reported that Sir Kim resigned as ambassador to the US shortly after the publication of that article.

On 15^th July 2019, the Washington Examiner published an article by Mr Tom Rogan in which it was alleged that Sir Kim had “leaked” US intelligence to a CNN journalist.

On 11^th November 2019, Sir Kim was ennobled as Lord Darroch of Kew. On 31^st December 2019, he retired from HM Diplomatic Service.

On 12^th October 2020, Lord Darroch was served with a “right of reply” letterby The Sun newspaper. That letter informed him of the intention of The Sun to publish a story that he had disclosed secret documents in the course of a sexual relationship with a journalist.

In the early hours of the morning of 13^th October 2020, the Claimant was arrested by officers of the Metropolitan Police Service (“MPS”) at his home in London.

On 17^th October 2020, The Sun published, on its front page, an article alleging that Lord Darroch had leaked US secrets in return for sexual favours.

The following day, 18^th October 2020, the Telegraph newspaper published a story that alleged that a “Civil Servant suspected of US cable leak may face trial”. That article asserted that British intelligence services were determined that a civil servant arrested on suspicion of leaking diplomatic telegrams sent by Lord Darroch should be brought before the Courts.

On 26^th May 2021, the Claimant was dismissed from the first Defendant’s employ because of “national security concerns”.

On 11^th November 2022, the Claimant issued these proceedings.

Before turning to the summary judgment application, it is worth noting what this case is not about.

The Claimant acknowledges that this claim does not concern the way in which his arrest was executed by the MPS. He is pursuing a complaint about that matter to the Independent Office for Police Conduct but it does not ground a complaint in these proceedings. Nor do these proceedings concern the means by which the Police, or other agencies, obtained the information that led to his arrest. That was the subject of a separate claim before the IPT in respect of which the IPT have decided to make no determination in the Claimant’s favour.

Instead, the present claim is focused on the actions of civil servants in the two Defendant departments, who the Claimant alleges wrongly identified him to the Police as the source of leaked diplomatic telegrams and other sensitive material.

The Claimant’s pleadings and witness statements in this case are prolix, tendentious and poorly focused. However, the essence of his claim is clear and can be shortly stated. During the course of the hearing of this application, I articulated the summary of his case which follows to counsel and neither side suggested it was unfair or incomplete.

The Claimant avers that his arrest came about as a result of actions by certain named civil servants who, as it is put in his skeleton argument for this application, “falsely identified him to Police as a source of diplomatic telegrams” from Sir Kim “which had been leaked to Steven Edginton”. It is said that it was the publication of those telegrams in the Mail on Sunday on 6^th July 2019 “which precipitated” Sir Kim’s resignation later that month.

The Claimant avers that the “right of reply” letter served on Lord Darroch by The Sun on 12^th October 2020 prompted civil servants in the two Defendant departments falsely to identify him to the Police as the source of the leak, causing a “raid on his house at 5am the next day”. He then alleges that those civil servants informed the Press of his arrest “in order to create a distraction from adverse reporting about the conduct of Lord Darroch”.

It is alleged that those actions amounted to misfeasance in public office, breach of duty, breach of the articles of the Convention referred to above, misuse of private information and infringement of the Claimant’s right to privacy under the Convention. Each of those allegations turns essentially on the facts summarised above. If it was not civil servants in the Defendant departments who, directly or indirectly, informed the Police that the Claimant was the source of the leak, then the Defendants are not responsible for the alleged misuse of data, breach of duty, breach of privacy or breach of the Convention or the GDPR. Further, if the report to the Police was justified because the body making the report had reasonable grounds for believing the Claimant was the source, again there would be no actionable breach of any of the duties relied upon.

There is no dispute between the parties as to the legal principles applicable to the Defendants’ application for summary judgment. Those principles were, to adopt the words of Etherton LJ in AC Ward & Son v Catlin (Five) Ltd and others [2009] EWCA Civ 1098 at [24], “conveniently summarised” by Lewison J in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15].

It follows, as was submitted by both parties, that the primary question that arises for decision in the present case is whether the Claimant has a realistic, as opposed to a fanciful, prospect of success. In answering that question, I must have regard not only to the evidence before me on the application but also to evidence that can reasonably be expected to be available at trial.

It is the Defendants’ case as advanced by Mr Heppinstall KC in his skeleton argument and oral submissions in OPEN that it is clear here, on the OPEN evidence, that there is no real substance in any of the Claimant’s relevant submissions. He says that that is made crystal clear in the CLOSED evidence.

It is the Claimant’s case, as advanced by Mr Diamond and his junior Mr Samuel Dewey (both of whom made oral submissions before me) that the Claimant has a strong case, or, at the very least, a case with realistic prospects of success.

The essential elements of the claim as advanced before me (the “sting”, as Mr Heppinstall puts it) can be shortly stated. It has four components. First, as set out in paragraph 15 of the Particulars of Claim, it is alleged that the two Defendant departments informed the MPS that the Claimant was responsible for the leaks to the Mail on Sunday in July 2019. Second, it is alleged, at paragraph 23 and 23(h), that their identification of the Claimant as the source was false and was made in bad faith; in other words, knowing that in fact there was no evidence that the Claimant had anything to do with the leaks. Third, it is alleged, at paragraph 23 and 23(1), that they did so in order to divert public attention away from the reports of Lord Darroch’s conduct in “leaking” confidential information to a CNN journalist. And fourth, it is alleged that they reported his arrest to the press as an act of retaliation against the Claimant because he was regarded as a troublesome employee and/or because he had made complaints about bullying in the department.

The evidence relied upon in support of the first element of the Claimant’s case, namely that the Defendants told the Police that he was the source of the leak on 6^th July 2019, is first his own assertion that it was, or must have been, the Defendants who told the Police that he was the source and second the content of a briefing note from the department of the MPS known as “SO15” dated 12^th October 2020.

In my judgment, the first point is nothing more than assertion; it is not evidence at all. The Claimant does not even purport to suggest that he has direct personal knowledge that it was the Defendants’ staff who told the Police that he was responsible for the leaks.

The second piece of evidence upon which the Claimant relies is the briefing note provided by SO15. That was apparently obtained following a subject access request. That briefing included the following “UK security Services (sic) have now identified Andrew Hale-Byrne as the source of the leak within the UK government.”In my judgment, on the current state of the pleadings, that does not assist the Claimant either. It does not assert that it was staff of either of the Defendant departments who provided this information to the Police and none of the UK’s security services are a party to these proceedings.

It is right to observe that the Security Service has a statutory role in relation to criminal matters. Section 1(4) of the Security Service Act 1989 (as amended) provides that it shall also “be the function of the Service to act in support of police forces in the prevention and detection of serious crime.” So, it is possible that the Security Service might have supported the MPS in their investigations.

Section 17(3) of the Crown Proceedings Act 1947 provides that “civil proceedings against the Crown shall be instituted against the appropriate authorised Government department, or, if none of the authorised Government departments is appropriate or the person instituting the proceedings has any reasonable doubt whether any, and if so which of those departments is appropriate,” then he must institute the proceedings against the Attorney General (“the AG”). The Secretary of State for the Home Department (“the SSHD”) has ministerial responsibility for the Security Service. Had the Claimant wished to make a claim against the Security Service in these proceedings, the SSHD (or alternatively the AG) should have been made a Defendant. But the Claimant has never intimated a claim against the SSHD or the Security Service or the AG. There is no pleaded case that the Defendants used the Security Service or any other agency as an agent or conduit by which they passed information to the Police.

I raised with both parties during the course of the argument the possibility of my permitting the Claimant to amend their pleadings to add the Security Service or the SSHD as a Defendant. Mr Heppinstall said that the Defendants would vigorously resist any such amendments, pointing out how late it was in the course of the proceedings and how long the Claimant had been in possession of the SO15 report. Perhaps surprisingly, Mr Diamond did not respond to my suggestion that he seek permission to amend. Had he done so, the likelihood is that I would have refused the application for the reasons advanced by Mr Heppinstall. But, as it was, there was no such application.

Mr Diamond’s very last submission was to the effect that if I thought there should be some amendment to his claim, I should give him leave to make that application. That is no way to conduct litigation. The application for summary judgment was issued in February 2024, and the Claimant has had ample time to ensure he is proceeding against the right Defendant. His counsel did not take up my suggestion of applying to amend the Particulars of Claim and it is not appropriate for him simply to invite the Court to remedy deficiencies in his pleadings. What would have been required was a formal application to amend the Particulars of Claim or to join a further party, and no such application was made or particularised.

I conclude there is simply no evidence in support of the pleaded case in this regard, and, in particular, in support of the contention that civil servants in either department informed the Police that the Claimant was the source of the leaks.

That being so, the second essential issue does not arise. If there is no realistic case that the Defendant departments identified the Claimant as the source of the leaks, it is of no consequence whether he was in fact, or was believed to be, the source. However, in case I am wrong about the former question, and because I have heard lengthy submissions on the issue, I go on to consider issue 2.

The second essential element of the Claimant’s claim is that the Defendants passed on this information to the Police when the Defendants knew that it was not true or perhaps to put it more accurately, had no reason to believe it was true. In support of that contention, the Claimant relies first on his own assertion that he had nothing to do with the leaks that led to the article in the Mail on Sunday on 6^th July 2019; second, he relies on the evidence of the journalist, Steven Edginton, who says in his witness statement that the Claimant was not his source; and third he points to circumstantial evidence which he says makes it unlikely that he was the source.

In that latter regard, he points out that he was not in the department in 2017 when the memorandum to Sir Mark Sedwill was allegedly sent by Lord Darroch; he says that the relevant diplomatic telegrams would have been seen by thousands of other people, any of whom might have leaked it; and that it cannot be a coincidence that his arrest occurred one day after the “right of reply” letter was served on Lord Darroch.

The weight to be attached to the Claimant’s own assertion that he was not the source has to be tested against all the other evidence in the case, OPEN and CLOSED. On a summary judgment application, it cannot lightly be put to one side. In my judgment, the weight to be attached to the assertion by Mr Edginton that the Claimant was not the source is modest given how unlikely it is that a journalist would identify his source. But that too cannot be disregarded.

The fact that the Claimant was not in the second Defendant department in 2017 seems to me irrelevant because he certainly was in the department on the date by which that document must have been leaked. The fact that many other people had access to the relevant documents may be true, but it does not establish that it was not he who was the source of the leak. Those circumstantial matters add only modest weight to the Claimant’s case.

Finally, there seems to me no weight in the suggested coincidence that his arrest occurred the day after the “right of reply” letter. Very properly, recognising his duty to the Court, it was Mr Diamond who pointed out to me that the SO15 document that indicated the intention of the Police to arrest the Claimant was created on 11^th October 2020, one day before The Sun served its “right of reply” letter and two days before the Claimant’s arrest. There is nothing whatsoever to support a suggestion that SO15 knew in advance of The Sun’s plans to serve the “right of reply” letter on 12^th October. Accordingly, the decision to arrest the Claimant cannot have been prompted by its service on Lord Darroch. In other words, contrary to the Claimant’s case, the ‘prompt’ for the arrest cannot have been the “door stepping” of Lord Darroch by The Sun on 12^th October because the decision to arrest the Claimant had been made before that event.

However, looking at it in the round, on this part of the case, I conclude on the OPEN evidence that the Claimant’s case that he was not the source of the leak in 2019 is weak but not fanciful. It turns essentially on his own evidence that he did not play a part in that leak and it gains modest support from the confirmation of Mr Edginton that he was not the source. Absent the CLOSED evidence, I would not have concluded, on that issue alone, that the Claimant had no realistic prospect of success.

The third and fourth issues turn on potential motivations for the Defendants’ alleged conduct. The Claimant argues that his arrest was designed to distract attention away from the press reporting on Lord Darroch’s behaviour. As to that, the Claimant agrees that he can point to no direct evidence of such a motive but argues that this would be a legitimate inference for the Court to draw on all the evidence.

In my judgment, that contention too falls in light of the evidence as to the date that the Police decided to make the arrest, namely 11^th October 2020. It is impossible to see how the Police, let alone the Defendants, could be said to be motivated on 11^th October to instigate an arrest by something that happened the day after the decision was made.

The fourth issue is whether after the arrest of the Claimant, the Defendants informed the media, and in particular the Telegraph, of his arrest as part of “a misinformation campaign” against the Claimant. The Claimant accepted that it can only be a matter of inference that this was the Defendants’ motivation for the Defendants to release information to the media.

The evidential basis for this fourth allegation is the article which appeared in the Telegraph on 18^th October 2020. However, that article does not assert that either Defendant department provided the media with information that the Claimant had been arrested: on the contrary, it asserts that it was the intelligence services who were determined that the civil servant who had been arrested should face the Courts. There is no evidence whatsoever that civil servants in either Defendant department did what is alleged.

In the light of that analysis, it is only issue 2 on which, on the OPEN evidence, it could be said that the Claimant has any realistic prospect of success. However, since there is no evidence that the staff of either department told the Police anything, I would, on the OPEN evidence alone, grant the Defendants’ application for summary judgment.

I deal in the CLOSED annex to this judgment with the CLOSED evidence. That evidence reinforces the conclusion I have reached on the OPEN evidence that the Defendants’ application must succeed.

I have considered whether there is any other ground on which a trial would be appropriate. I see none on the OPEN evidence and am reinforced in that conclusion by the CLOSED evidence.

Given my conclusion that there should be summary judgment for the Defendants on both the OPEN and CLOSED evidence, the application to join Lord Darroch must now fall as academic.

For the sake of completeness, however, I would add that had I rejected the Defendants’ summary judgment application, I would also have rejected the Claimant’s application to add Lord Darroch. There is much force in all of the arguments set out by Mr Julian Blake on behalf of Lord Darroch, in both his skeleton and his oral submissions. But in my judgment, the fundamental objections to the Claimant’s application are first that there is no evidence whatsoever that Lord Darroch played any part in the decision by the Police to arrest the Claimant on 12^th October 2020, and second that, in any event, Lord Darroch did not hold public office in October 2020 and was not acting in such an office when he did what the Claimant alleges he did.

For those reasons, together with the reasons set out in the CLOSED annex to this judgment, the Defendants’ application for summary judgment is granted. The Claimant’s application to join Lord Darroch is dismissed.

I will hear counsel on the form of the Order which is appropriate.