Case Reference: FT/EA/2025/0468
Information Rights
Heard by Cloud Video Platform
Before
JUDGE HARRIS
JUDGE WORTH
MEMBER PEPPERELL
Between
ELEANOR SHAIKH
Appellant
and
(1) THE INFORMATION COMMISSIONER
(2) POST OFFICE LIMITED
Respondents
Representation:
For the Appellant: Michael Deacon
For the First Respondent: Will Perry
For the Second Respondent: Robin Hopkins KC
Decision: The appeal is Dismissed
REASONS
Background to the appeal
This appeal concerns a decision of the Information Commissioner (the “IC”) dated 21 November 2025, reference IC-391819-V8B8 (the “Decision”). The Decision was in connection with a request for the Post Office (“the PO”) to disclose the unpublished Guiding Principles of the Horizon Shortfall Scheme (“HSS”) which it uses, alongside its Terms of Reference (“TOR”) to assess applicants’ claims. The HSS is designed to resolve past issues for postmasters who believe they have experienced shortfalls related to the historic version of the PO’s Horizon IT system. The facts of the difficulties with this system, the subsequent litigation and the impact which this had on the individuals are widely known, and we do not attempt to summarise them in this decision, particularly as there has been a public Inquiry in the matter which published its first volume of report on 8 July 2025 and further volumes are expected in future.
The complainant, Ms Eleanor Shaikh, who is the Appellant in these proceedings, made an information request to the Post Office (“the PO”) on 27 March 2025 in the following terms:
“Please can you release the unpublished Guiding Principles of the Horizon Shortfall Scheme which the Post Office uses, in tandem with its Terms of Reference, to assess applicants' claims.”
The PO responded on 2 May 2025. It refused to disclose the requested information citing sections 40(2), 40(3A) and 42(1) of the Freedom of Information Act 2000 (“FOIA”).
Ms Shaikh requested an internal review on 4 May 2025.
The PO carried out an internal review and notified Ms Shaikh of its findings on 4 June 2025. It upheld the application of the exemptions on which it had initially relied.
Ms Shaikh contacted the IC on 4 June 2025 to complain about the way her request for information had been handled. She stated that with regards to PO’s application of section 42 of FOIA, she believed there are clear and significant public interest arguments in favour of disclosure and these outweigh any public interest arguments in favour of maintaining the exemption. With regards to section 40 of FOIA, she confirmed that she was content for any personal data or case studies to be redacted.
The PO confirmed to the IC on 4 August 2025 that there were four documents within scope of the request which were:
The Case Assessment Guidance (“CAG”)
The Case Assessment Principles (“CAP”)
The HSS terms of reference (“TOR”)
The terms of reference of the HSS Independent Advisory Panel (updated June 2025).
The latter two documents were provided to Ms Shaikh on 29 August 2025, so the outstanding documents with which this appeal is concerned are the CAG and CAP. The PO provided the following descriptions of these documents in its letter to the IC dated 4 August 2025 (OB 83):
“The CAG is a 218-page document containing legal advice on the legal principles contained in the CAPs and the recoverability of those heads of loss. This document is still live and has been updated as new information becomes available.”
“The 165-page CAPs are drafted so the relevant principles are set out on the left side of the document in tabular form and the Panel has the benefit of specific case examples of each on the right side. These contain detailed narratives on the individual circumstances of real live cases, which are disclosing detailed evidence and information, some of which would constitute sensitive personal data, for example, detailed evidence on psychiatric injury. Although postmaster data has been pseudonymised (they are referred to by their case numbers only, the level of detail necessarily included within the case examples would still allow a number of individuals to be identified, particularly given the media and public attention that many case have attracted.”
On 21 November 2025, the IC issued the Decision Notice. In this, he decided that the PO is entitled to refuse to disclose the requested information in accordance with section 42 of FOIA.
Abbreviations used in this Decision
“CAG” means Case Assessment Guidance
“CAP” means Case Assessment Principles
“the Decision” and the “Decision Notice” or “DN” mean the IC’s decision dated 21 November 2025, reference IC-391819-V8B8
“FOIA” means the Freedom of Information Act 2000. All references to sections are references to sections of this Act unless otherwise specified
“Guiding Principles” or “GP” means the Guiding Principles of the Horizon Shortfall Scheme
“HSS” means the Horizon Shortfall Scheme
“IC” means the Information Commissioner, the First Respondent
“Inquiry” means the Post Office Horizon IT Inquiry.
“LAP” means Legal Advice Privilege
“LPP” means Legal Professional Privilege
“the Panel” means the HSS Independent Advisory Panel
“the PO” means the Post Office, the 2nd Respondent
“the request” means the information request made by Ms Shaikh to the PO on 27 March 2025
“TOR” means the Post Office’s Terms of Reference for the Horizon Shortfall Scheme
“UKGI” means UK Government Investments Limited
“UT” means the Upper Tribunal, Administrative Appeals Chamber Procedural matters concerning the hearing
“Withheld Information” means the withheld information which is the subject of this appeal
Procedural matters concerning the hearing
There were two OPEN sessions attended by all the parties and a CLOSED session which was attended only by the PO and their representatives and the IC’s representative.
The Tribunal considered an OPEN bundle of documents (336 pages). The parties also submitted a joint authorities bundle (485 pages). In this decision we refer to page numbers of documents in these bundles with the prefixes OB and AB respectively.
The Appellant also applied for the late admission of an additional document, namely the PO’s response to the Inquiry dated 15 November 2021 in relation to waiver of privilege. We were satisfied that it contained material potentially relevant to the matters the Tribunal must consider and that it was in the interests of justice to admit it.
The Tribunal also considered a CLOSED bundle of withheld documents (384 pages). Prior to the hearing an application under rule 14 of the Tribunal Rules had been made as regards the withheld and other CLOSED material and an order made that disclosure of the information contained in the CLOSED bundle should not be disclosed or published to any person other than the IC and PO in this case pending further order.
The following gist of the CLOSED session was approved by the Tribunal and provided to Ms Shaikh:
“Mr Perry made submissions with reference to the withheld material on behalf of Ms Shaikh pursuant to Browning v Information Commissioner [2014] EWCA Civ 1050.
As regards the CAG: Mr Perry (i) submitted that the document supported Ms Shaikh’s arguments on the application of the s.42 exemption, including with reference to parts of the withheld information shedding light on the interrelationship between the CAG and publicly available documents; (ii) submitted disclosure would not provide applicants to the HSS with an unfair advantage; and (iii) queried the extent to which the CAG had been updated over time on an iterative basis.
As regards the CAP, Mr Perry made submissions about how this document was treated, with reference to Ms Whitehall’s evidence.
More generally, Mr Perry made submissions about the level of detail contained within the withheld information as compared to publicly available materials.
Mr Perry also submitted, on behalf of the Commissioner, that the withheld information was not likely to mislead the public if it were disclosed.
Mr Hopkins replied to these submissions.
As regards the CAG, Mr Hopkins made submissions about (i) the nature of the document and HSF's role in creating it as explained in Ms Whitehall’s evidence; (ii) the relationship between this document and publicly available materials, and the complexity and level of detail of analysis contained within the CAG; and (iii) the lack of any challenge to or further questions about Ms Whitehall’s evidence that the documents had been updated on an iterative basis.
As regards the CAP, Mr Hopkins made submissions about how this document was treated, with reference to Ms Whitehall’s evidence.
Mr Hopkins made submissions, with reference to the withheld material, clarifying the Post Office’s case on the risk that disclosure might mislead the public if redactions were applied for personal data. These were essentially the same as his open submissions on this point, namely that the risk of misunderstanding would arise if the identifying details from individual case studies were to be redacted.
Ms Pepperell asked Mr Hopkins whether it might be possible to disclose the withheld material on a partial basis. Mr Hopkins responded opposing that suggestion. He said that the authorities warned against ‘cherry picking’ in this context. Mr Hopkins made submissions about the risk that disclosure of parts of the withheld material might undermine the Post Office’s confidentiality and privilege claims over the remainder. He also submitted that any disclosure would intrude upon Post Office’s privilege rights and that disclosure of, e.g. more anodyne parts would not be in the public interest.
Ms Pepperell asked what purpose the withheld material serves as matters stand. Mr Hopkins explained that it serves the same purposes as previously: although the HSS closed for new applications in January 2026, the Post Office are still working through existing cases. Mr Hopkins clarified that the CAG and CAP are not shared with the Wandsworth Mediation Service. Having taken instructions over the short break, he has clarified that the CAG and CAP were provided to DBT (which is responsible for the HSSA) on a common interest privilege basis.”
Having considered all the evidence, the Tribunal’s view was that the reasons for its decision could be properly set out in an OPEN decision and therefore did not prepare a separate CLOSED decision.
The Appeal
Ms Shaikh appealed the Decision to the Tribunal on 18 December 2025 seeking to have the IC’s decision-making re-considered in several regards.
In summary, she made the following points:
The IC has considered and applied the concept of privilege incorrectly, applying it too widely across all documents in scope of the request (Ground 1). It has treated all documents in scope as being privileged by virtue of (some of) their content having been informed by advice from the PO’s legal advisers. The documents should be considered on a more granular basis for disclosure, rather than assuming all are privileged. There is a self-evident and legal distinction between documents created by external counsel for the purpose of delivering legal advice to their client which do qualify for legal protection privilege (“LPP”) and policy documents informed by legal advice which have been created by a party for operational purposes which do not. There is a conceptual and legal distinction between the process of drafting or updating a document with the benefit of legal advice and the subsequent application of that document.
The IC is incorrect in concluding that LPP has not been waived in relation to various documents falling in scope of the request (Ground 2). The PO has shared the documents in question with a range of other organisations and they should be made available to sub-postmasters as they too have a clear interest in HSS. The Appellant subsequently confirmed in her skeleton argument that she did not pursue this ground.
In treating the documents falling into scope as a homogeneous group, the IC has not properly weighed the relevant public interest considerations correctly in relation to them (Ground 3). In particular:
The IC has given far too much weight to the PO’s suggestion that some of the documents in question relate specifically to live and ongoing cases progressing through the scheme. That cannot be true of all the documents in the set, which renders irrelevant the factors raised by the IC in relation to prejudice to individual cases. The documents sought are overarching policy documents about the principles used to administer the scheme and do not relate to any individual case.
The IC was wrong to accept, or placed too much weight on, the PO’s arguments that the publication of unpublished Guiding Principles could cause confusion among compensation applicants and could affect the scheme’s ability to function effectively, causing delays and expense. In reaching this view she had regard to these points:
The IC specifically and repeatedly recognised the need for transparency and accountability in relation to the way individual claims are assessed
That the PO has chosen to structure its decision-making process such that it regularly obtains advice to update the principles it applies should not be allowed to act as a barrier to public understanding of those principles.
The assumption that the public may misinterpret or be confused about the principles is baseless. If they are coherent they will be understood; if they are not that should also be known to the public.
If explanations are required to assist the public or applicants in understanding the principles, that is not a reason for not disclosing those principles.
She considers that privilege is unlikely to apply to the principles so far as finalised for application (even if updated regularly) but whether it applies or not, the public interest in disclosure should outweigh the value to be attached to privilege on these facts.
It is misconceived for the PO to argue that it cannot disclose the principles because they contain the personal data of other applicants; redaction should be able to address these concerns. A granular analysis is required.
The IC’s response to the Appeal
The IC filed a response to the Appeal dated 6 February 2026, opposing it and inviting the Tribunal to dismiss it.
In relation to whether the withheld information was privileged (Ground 1), in summary he made the following points:
The IC accepts the Appellant’s distinction between privileged “[d]ocuments created by external legal counsel for the purposes of delivering legal advice to their client” and non-privileged “[p]olicy documents created by a party for operational purposes, which have been informed by legal advice”.
The IC considers that the withheld information provides the HSS Advisory Panel (“the Panel”) with advice “as to what should prudently and sensibly be done in the relevant legal context”: Balabel v Air India [1998] Ch 317, at 330; approved in Three Rivers DC v Bank of England (No 6) [2005] 1 AC at §§43 and 62. In this regard, the withheld information was produced by HSF, which provided the Post Office with the “special professional knowledge and skills of a lawyer”: Three Rivers (No 6) at §§44 and 62. The relevant legal context is clear from the Overriding Objective at §§1-3 of the Panel’s Terms of Reference, which explains that: “ The task of the Panel is to assess and recommend to Post Office a fair outcome for Eligible Claims made to the Scheme for Shortfall Losses and Consequential Losses. The Panel’s objective is to assess Eligible Claims by applying the principles and standards set out in Section E below. The Panel will aim to assess and recommend outcomes on Eligible Claims in a timely manner having regard to the need to ensure sufficient care and consideration is given to each claim to provide a fair recommendation. “The IC was right to conclude at paragraph 117 of the DN that the sole purpose of both documents was to provide legal advice to those on the panel.
The provision of legal advice was the dominant purpose of the withheld information.
In relation to whether privilege was waived (Ground 2), in summary he made the following points:
It is well-established that the disclosure of privileged documents for a limited purpose does not, without more, constitute a general waiver or loss of privilege: B v Auckland District Law Society [2003] 2 A.C. 736 at §68 per Lord Millet; Berezovsky v Hine [2011] EWCA Civ 1089 at §§27–29. This supports the IC’s conclusion at paragraph 15 of the DN.
The IC does not accept that the documents have been widely shared with a range of other organisations. The Panel has been provided with them, as the advice was for its benefit. The Department of Business and Trade and UK Government Investments have been provided with them as well; the former is the PO’s sole shareholder and the latter is wholly owned by the Government and acts as its shareholder representative. Limited waiver to a company’s sole shareholder does not result in waiver to the world at large.
In relation to the public interest balance (Ground 3), in summary he made the following points:
The withheld information contains a combination of legal principles, as well as – in the case of the CAP – specific examples of how those principles have been applied. The PO has further explained that the withheld information continues to be updated. The IC was entitled to conclude, and place weight on the fact, that the information could be used by the Panel to determine claims.
It is not realistic or proportionate for the PO to undertake ananalysis of what pieces of the withheld information are or might in future be relevantto specific live cases. The IC was therefore entitled to accept the PO’s explanation that the CAG and CAP were live documents.
The Appellant is incorrect to suggest that the PO’s arguments about risk of disclosure confusing applicants was implicitly part of the IC’s reasoning, as it does not form part of the IC’s public interest analysis at paragraphs 21 to 34.
The IC disagrees that the public interest in disclosure outweighs the interest in non-disclosure. The public interest in protecting privileged information isinvariably very weighty, and disclosure on the facts of the case would result inparticular prejudice: see DN §32 taking into account “the age of the legal advice, the fact that there are still many ongoing claims to negotiate on and settle, the prejudice disclosurewould cause to PO and the compelling public interest in favour of maintaining a fair andunbiased route to justice for both parties”.
The PO’s response to the Appeal
The PO filed a response to the appeal on 13 February 2026. In summary, it made the following points:
It explained that the CAG and the CAP were created by the PO’s lawyers, Herbert Smith Freehills LLP (“HSF”), only for the purposes of advising PO as to the legal principles governing the recoverability of losses and on the approach of the Panel to its assessment of applications to the HSS. Specifically, the CAG and CAP attract legal advice privilege (“LAP”). LAP applies squarely to “living” documents which continue to be updated.
The CAG and CAP attract LAP in their entirety: indeed, they are paradigm examples of documents attracting LAP. Cherry-picking parts of these documents for public disclosure is contrary to principle (as regards the maintenance of LPP) and contrary to the public interest. These documents in their entirety remain in live use as part of the HSS process, applications for which only closed on 31 January 2026, with many cases yet to be determined. These documents remain live in terms of their ongoing application.
The question is not whether the principles in these documents are coherent (which the PO is confident they are), but whether they are liable to be misunderstood, given that they were drafted for very particular purposes.
The CAG and CAP have only been shared with the HSS Independent Advisory Panel, the Department for Business and Trade (“DBT”), and the UK Government Investments (“UKGI”). DBT is the PO’s shareholder, with UKGI acting as shareholder representative and with both DBT and UKGI funding the HSS. Post Office has shared these documents with those parties on strict terms. These limited and controlled disclosures do not in any way amount to either a loss of confidentiality in or a waiver of LAP rights over the CAG and CAP.
There is very strong public interest in protecting LAP in general, and all the more so in the circumstances of this particular case. The public interest in disclosure is not nearly as strong as the public interest in maintaining the section 42(1) FOIA exemption. The IC thus reached the right decision overall and this appeal should be dismissed
Legal Framework
Section 42(1) FOIA provides that “[i]information in respect of which a claim to legal professional privilege… could be maintained in legal proceedings is exempt information.”
As the Upper Tribunal explained in Cabinet Office v Information Commissioner [2014] UKUT 461 (AAC), at §62, the exemption is “coterminous with the doctrine of legal professional privilege, which the exemption is designed to protect”.
There are two types of LPP - litigation privilege and legal advice privilege (“LAP”). Litigation privilege covers documents brought into being for the dominant purpose of litigation. LAP applies to confidential communications between a lawyer and client in a relevant legal context, where those communications are made for the dominant purpose of giving or receiving of legal advice. This includes communications that form part of a “continuum” which aims to keep client and lawyer informed so that legal advice may be given as required: Balabel v Air India [1988] Ch 317; Civil Aviation Authority v R (on behalf of the application of Jet2.com Ltd) [2020] EWCA Civ 35 (“Jet2”).
LAP extends not only to questions of whether a course of action is lawful, but also for example to “advice as to what should prudently and sensibly be done in the relevant legal context”: Balabel v Air India; Three Rivers Council v The Governor and Company of the Bank of England (No 6) [2004] UKHL 48; [2005] 1 AC 610.
The concepts of LAP and the “continuum of communications” must be applied broadly provided the other conditions (lawyer-client legal context, confidentiality) are met: see e.g. Jet2 at [69] and the authorities discussed there.
LPP is “a fundamental condition on which the administration of justice as a whole rests”: R v Derby Magistrates' Court ex parte B [1996] AC 487 at page 507C-D. LPP is so important that it “should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busybodies or anyone else…”: Three Rivers (No 6) at [34].
LAP is “a corollary of the right of any person to obtain skilled advice about the law. Such advice cannot be effectively obtained unless the client is able to put all the facts before the adviser without fear that they may afterwards be disclosed and used to his prejudice”: R (Morgan Grenfell & Co Limited) v Special Commissioner of Income Tax [2002] UKHL 21; [2003] AC 563 per Lord Hoffmann at [7]. In the FOIA context, the weight of the public interest in maintaining LPP is well established by the authorities. See e.g. DBERR v O’Brien [2009] EWHC 164 (QB) at [35]-[38] and Savic v Information Commissioner & Attorney General’s Office & Cabinet Office [2016] UKUT 534 (AAC) at [26]-[34], [44] and [47]. There is a powerful in-built public interest in maintaining the section 42(1) FOIA exemption; indeed, of all the qualified exemptions under FOIA, section 42(1) has the greatest inherent weight. Disclosure requires “some clear, compelling and specific justification”: DBERR at [36]-[37]. However, although we heard arguments on this during the hearing, we did not accept that a test of exceptionality was required, as the case from which this was drawn (Aitchison) was not concerned with the exemption in section 42(1).
The public interest balancing test
This applies to section 42 as a qualified exemption
When determining whether or not the public interest test is met, the Tribunal’s task is to identify the actual harm or prejudice that the proposed disclosure would (or would be likely to or may) cause and the actual benefits its disclosure would (or would be likely to or may) confer or promote. This requires an appropriately detailed identification, proof, explanation and examination of both (a) the harm or prejudice, and (b) benefits that the proposed disclosure would (or would be likely to or may) cause or promote: APPGER v IC [2013] UKUT 560 at [74]-[76] and [146]-[152].
Where more than one exemption applies, the public interest in maintaining the exemptions should be considered cumulatively: Department for Business and Trade v IC & Montague [2025] UKSC 27; [2025] 1 WLR 3456 at [34]-[52].
This has been described as a three-stage test: The first step is to identify the values, policies and so on that give the public interests their significance. The second step is to decide which public interest is the more significant. In some cases, it may involve a judgment between the competing interests.
In other cases, the circumstances of the case may (a) reduce or eliminate the value or policy in one of the interests or (b) enhance that value or policy in the other. The third step is for the tribunal to set out its analysis and explain why it struck the balance as it did: O’Hanlon v IC [2019] UKUT 34 (AAC) at [15]. Any factor that is capable of affecting the operation of those values and policies is relevant to the balancing exercise. That includes both the content of the information and the possible consequences of disclosure or non-disclosure. The arguments presented may be general in their nature or unique to the information in issue. But the test is not an abstract one; the issue is always whether the information covered by the request should be disclosed: NHS England v IC and Dean [2019] UKUT 145 (AAC) at [15].
The public interest balancing test should be carried out by reference to the circumstances pertaining on the date on which the request for information ought to have been dealt with pursuant to FOIA (section 10(1) FOIA: within 20 working days following receipt of the request): Montague v IC and DIT [2022] UKUT 104 (AAC) at [47]-[90] (see Cabinet Office v IC [2025] UKUT 114 (AAC) at [113]).
When weighing the public interest, the tribunal should take into account “the actual effect that disclosure could have rather than the effect it should have”.
On the specific application of the public interest test to the section 42(1) exemption:
The exemption in section 42(1) attracts significant in-built weight in favour of non-disclosure, as explained by Wyn Williams J in DBERR v O’Brien v Information Commissioner [2009] EWHC 164 QB at §§41 and 53. Paragraph 41 states “the in-built public interest in non-disclosure itself carries significant weight which will always have to be considered in the balancing exercise once it is established that legal professional privilege attaches to the document in question”.
Second, “[h]owever strong the public interest against disclosure, it does not convert a qualified exemption into one that is effectively absolute”: Corderoy and Ahmed v Information Commissioner [2017] UKUT 495 (AAC), at §68. As the Upper Tribunal recognised in Savic v Information Commissioner [2017] UKUT AACR 26, at §30: “FOIA has not followed the approach taken by the courts [generally] to LPP … in that it has introduced a public interest test…”:
A public authority seeking to rely on the exemption must establish that the “powerful” public interest in non-disclosure “outweighs the competing interest in favour of disclosure if the exemption is to apply”: Corderoy and Ahmed at §68. However, there is no test under which “exceptional circumstances” must be shown before the public interest in disclosure of legally privileged information will be held to outweigh the public interest in maintaining the exemption in section 42: DBERR at §41.
Whilst an “in-built” weight is invariably afforded to the public interest in non- disclosure, the overall weight to be given to the exemption may vary depending on other factors: DBERR at §53; Callender Smith v Information Commissioner [2022] UKUT 60 (AAC) at §50.
The Role of the Tribunal
The Tribunal’s remit is governed by section 58 FOIA. This requires the Tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the IC’s decision involved exercising discretion, he should have exercised it differently. If we are satisfied that the IC’s decision notice is in error of law or involves an inappropriate exercise of discretion then we will allow the appeal and may substitute a decision notice for that of the IC. The Tribunal may receive evidence that was not before the IC and may make different findings of fact from the IC.
Submissions
In her skeleton argument, the Appellant made the following additional points, in summary:
On the information available, it is unlikely that privilege attaches to the CAG and, even if it does, the public interest factors in support of disapplying that qualified exemption are more than sufficiently strong to justify doing so.
The same submissions are made in relation to the CAPs and it is also submitted that a combination of redaction and/or pseudonymisation would allow for disclosure. If a supplementary explanation were required to set the document in context, the need for this is not a sufficient reason to avoid disclosure.
The CAG, insofar as it is applied to real cases, should not be regarded as a privileged communications but a document from which it may be possible to infer the content of such communications. As such it does not attract privilege simply because disclosure was not intended, or otherwise. If the CAG is privileged the public interests weigh very strongly in favour of disclosure. This applies equally to the CAPs.
The HSS, CAG and CAPs could have been differently structured so as not to erode transparency. The choice by the PO to structure them in these ways should be given appropriate weight.
Mr Deacon, for the Appellant, made the following additional points in the hearing:
The first question for the Tribunal is whether the documents in whole or in part actually contain legal advice as opposed to content informed by legal advice and whether someone looking at it would draw an obvious rather than possible inference. If there is some content in the documents which meets this test, then the Tribunal should consider whether redaction is possible with disclosure of the balance of the documents.
If privilege is engaged then considerable weight should be attached to transparency. The HSS is one of the main remedial responses to the Horizon IT scandal. The idea that the means by which awards are decided should not be open and transparent is inherently inconsistent with the public interest, which arises itself from a lack of transparency. He suggested that a practical way to consider the HSS is that it is an expeditious substitute for litigation. This should not mean that claimants under the scheme are disadvantaged in understanding how awards made to them were arrived at. Even after awards have been made, those who have had claims determined have a right to understand the principles used to ensure consistency.
The essence of HSS is that it has the applicants at its centre and is set up to serve those applicants’ interests. It also embodies the idea of catharsis for individuals and the public, which is a huge concern. There is also a taxpayer element; at first pass £960 million of public funds is being paid in compensation, and understanding how this works in practice is important to the taxpayer. All of this needs to be balanced against the weight to be applied to LPP.
There is also evidence that the HSS has not been administered well and there is significant public and parliamentary concern about it not being administered consistently how awards are arrived at. He referred, among other things, to:
a YouGov survey (referred to in the Inquiry report at OB C271-2 and at OB320, paragraphs 6.28-9) which indicated that a high proportion of claimants were dissatisfied with the information provided as to how offers had been determined.
the concerns of the Business and Trade Select Committee (OB C299) about how HSS was being administered summarised by the Inquiry.
The Inquiry’s conclusion that the evidence does not justify a finding that the claimants who submitted claims received full and fair financial redress (OB C319, paragraphs 6.26-7).
concerns highlighted by Ms Shaikh in her witness statement at paragraphs 11-19 (OB C193).
Evidence given by Dr Neil Hudgell to the Select Committee (OB C159 Q34 ff)
The HSS consequential loss principles (OB C123) is a very general document and prospective rather than something from which an individual postmaster can learn how their claim is in fact adjudicated. Similarly the HSS TOR (OB C129) describes eligibility and process in very general terms but does not tell a claimant how their offer has been calculated. Even the template offer letter (OB C393) does not set out detailed working as to the principles and how they are applied in this case, although more working is shown in the annex (OB 410). There remains a concern that what is publicly facing and what is being decided are two different things. Disclosure of the principles would help understand how information is used and how this outcome is reconciled.
He also said that there needs to be sight of principles across all parties to see if it is consistent, not only for individuals but for the broader public interest such as the interest of taxpayers.
The IC declined to submit a skeleton argument, relying on its Response and the DN.
Mr Perry, for the IC, made the following additional points in the hearing:
Given what is said in paragraphs 21 to 24 of the DN, the IC does not accept this is a case where it has minimised public interest in transparency – such interest is clear.
Paragraph 33 of the DN (OB A11) makes it clear that there is a strong case for disclosure, but that the IC considers it is outweighed.
The Withheld Information is not the kind of information which is liable to confuse or mislead the public.
The PO, in its skeleton argument, in summary made the following additional points:
The general importance of protecting LPP is of itself a sufficient answer to MsShaikh’s appeal. The importance of LPP in this particular context – assessing claims on the public purse under government compensation schemes forrighting historic wrongs – is all the more acute. Public authorities tasked with making decisions under such schemes must be able to seek and considerlegal advice without that advice being published and used against them. It notes that HSS is not the only government compensation scheme and that the same principle applies across all schemes.
The IC was also right to give additional weight to the fact that this LAPconcerns live and ongoing matters. The CAG and CAP in theirentirety remain in live use as part of the HSS process, applications for whichonly closed on 31 January 2026, with many cases yet to be determined. The fact that they are live strengthens the already extremely strong public interest in maintaining the section 42(1) exemption. The“living” nature of these documents is not a barrier to their disclosure – LAP isthe barrier.
The PO accepts that there is public interest in the understanding of the principles guiding the determination of HSS applications, but (i) LAP applies equally to those principles (such that the public interest in maintaining section 42(1) FOIA applies with full force), (ii) the CAG and CAP constitute guidance rather than binding rules, and (iii) the PO already publishes guidance for applicants or prospective applicants to the HSS that assists them in understanding relevant principles, without intruding on PO’s LAP rights.
There is no need for the publication of the CAG and CAP, given the extensive transparency already provided.
Ms Whitehall also explains that Ms Shaikh’s reliance on alleged opacity andinconsistency is mistaken. See CW at [35] [OB/370]: “To the extent shesuggests that claims are determined by reference to undisclosed orinconsistent criteria, that is not correct. The CAG and CAP do not introduceseparate or hidden rules; rather, they reflect legal advice as to how publishedprinciples may be applied”.
PO maintains that the IC reached the correct conclusionabout the public interest balance, by reference to the general importance ofprotecting LAP and supplemented by the specific factors discussed atparagraphs 28-32 of the DN, e.g. as regards justice, fairness and alevel playing field, and the risk of disclosure in this case hindering PO’s ability to seek frank legal advice in future (including as the HSS processcontinues).
Mr Hopkins, for the PO, made the following additional points in the hearing:
The relevant time for assessment of the public interest balancing test is May 2025.
The evidence of Ms Whitehall, particularly at paragraph 22ff of her statement (OB C367) explains the purpose of the documents sought, and states at paragraph 25 “The purpose of their creation and ongoing development is to enable PO to obtain and apply legal advice in determining claims, including in order to ensure that redress decisions are made on a legally sound and consistent basis.” The CAP and CAG are interrelated and geared towards the same task and process. These are lawyer-client communications, so the question of inference does not arise.
The PO’s primary case is that the documents are privileged in their entirety and consideration therefore does not need to be given to redaction.
Of all the qualified exemptions under FOIA, this is the one which carries the greatest inherent weight, and there needs to be clear, compelling and specific justification to warrant disclosure, which in practice means this will only happen in the rarest of cases. The balance therefore starts with a very significant weight on maintaining the exemption.
The CAG and CAP were live at the time of the request and PO’s response to it; they are still in the process of being directly applied and in active use in terms of providing guidance on determination of applications under HSS. Applications closed on 31 January 2026 and there are many still to be considered. The live and iterative process adds to the weight in favour of maintaining, because difficult decisions under HSS need advice without fear of that advice being published mid-process and unfairly used against the PO.
While accepting that individual redress is vital and at the heart of HSS, and that getting the redress payments right is crucial in the interests of justice, but it is not as simple as a one-sided process to maximise payment. The public purse is exposed so it is not purely a matter of individual interest, but of getting the balance right in the public interest.
The fact that certain historic documents including legal advice were disclosed to the Inquiry does not dilute LAP in relation to the CAG and CAP. There is a difference between disclosing to an inquiry documents going to historic matters such as how IT problems arose that the Inquiry is investigating and disclosing documents attracting privilege because they relate to continuing ongoing work. The Inquiry was very clear about the parameters of the legal advice it wished to see and these documents do not fall within them. This adds weight in favour of maintaining and is exceptionally weighty on the facts of this case.
Public interest in these documents at the time of responding to the request was much weaker. This is not to downplay the gravity of the issues or their public importance. However, transparency at this point was already being sufficiently delivered and any incremental benefit over and above that scrutiny would be very limited and does not outweigh the factors in favour of maintaining. He commented that:
The nature of these documents is that they are guidance for the PO’s redress decisions, not a set of rules or determiners that turn out an answer of what an applicant should be offered.
The CAP and CAG do not introduce any secret or hidden rules. They reflect and contain legal advice as to how published principles may be applied (see Whitehall para 35, OB C370). This is no different to a lawyer using public announcements and case law to advise their client understand what the implications of these public matters might mean for them.
It is wrong to suggest that at the time of the request neither the public nor an applicant for redress would be unable to understand how any application would be assessed. The available documents (see eg OB C123) have substantially delivered transparency on this; they are necessarily general because of the huge variety of factual circumstances which arise in each individual case. The offer letter (OB C393) and annexes taken together give a detailed account to enable an applicant to understand how their offer was calculated. This does not need the legal advice itself for the person to understand and disclosure of that would undermine LAP.
These particular documents (CAP and CAG) would not take public or individual applicants further in understanding how a decision was made in a particular case, nor were they designed for that purpose. If case study details are removed comprehensibility is a problem.
There is a separate dispute resolution process set out in the TOR (OB C129 para 7) which enables applicants who are not happy with their offer to go through a mediation service.
At the time of the PO responding to the request, an additional new scheme had been set up, the Horizon Shortfall Scheme Appeals (HSSA). This was announced on 8 April 2025 (OB C376). This meant that HSS was not the be all and end all of redress, but rather part of a framework by which applicants could pursue the right sum.
At the point of responding to the request, Volume 1 of the Inquiry’s report had not yet been published, but the public work in hearing evidence and examining issues had already been undertaken, which meant transparency and scrutiny for both individuals and the public were already being substantially delivered at that time.
The criticisms of HSS made by the Inquiry and Select Committee fall outside the relevant period. The fact that there was dissatisfaction with initial offers, which were sometimes increased does not found public interest in the CAP and CAG.
The CAG and CAP are documents giving advice on the application of principles geared to getting the right answer on the facts of any given case and not about the mechanics of operating HSS. These documents are not the right targets in seeking to increase understanding on the latter and the incremental benefit their disclosure would bring is much less weighty than the factors in favour of maintaining. This is a clear case where disclosure would do more harm than good.
Issues
The Appellant no longer pursues Ground 2. The remaining issues identified by the IC in his Response, which we adopt here, are as follows:
Ground 1: whether the DN wrongly applied the concept of legal privilege and thereby erred in concluding section 42(1) FOIA was engaged in relation to some or all of the withheld information
Ground 3: whether the IC erred in his assessment of the public interest balance
Discussion and conclusions
Is section 42(1) engaged?
We noted that the IC and the PO were agreed that the CAP and CAG were legally privileged. Ms Shaikh, having not seen the documents did not agree.
On balance of probabilities, we concluded that the CAG and CAP were legally privileged documents because we accepted that the dominant purpose was to enable PO to obtain and apply legal advice in determining claims, including in order to ensure that redress decisions are made on a legally sound and consistent basis. We noted that these documents were not ones which were required to be disclosed to the Inquiry, which supported our view. Accordingly, we found that the exemption in section 42(1) was engaged by the CAG and CAP in their entirety.
The public interest balancing test
Having decided that section 42(1) is engaged, as it is a qualified exemption we proceeded to consider the balance of public interest.
Following the judgment in APPGER, we need to apply a three-stage process to determining where the balance of public interests lies. This involves considering:
The harm or prejudice which would result from disclosure;
Factors in favour of disclosure; and
Factors in favour of maintaining the exemption.
The harm or prejudice which would result from disclosure
From the evidence and submissions provided by the parties, we identified the following harm which it was said would result from disclosure:
At paragraph 19 of the DN (OB 7) the IC summarised the following harms identified by the PO:
The CAG and CAP are internal working documents not intended for public consumption, therefore their publication could lead to misinterpretation and confusion among compensation applicants and their legal representatives.
Disclosure of internal working materials could make the Panel’s future role difficult and affect its ability to function effectively.
Publishing the withheld information could necessitate additional explanations and processes, increasing time and costs and delaying compensation offers to HSS applicants.
The IC identified the following harms which would arise from disclosure of the withheld material in paragraphs 30 and 31 of the DN (OB 10):
Disclosure of at the time of the request (when the legal advice is live and there are still numerous claims to be considered and settled) would have upset the fine and delicate balance of achieving justice and a fair settlement for both opposing parties.
Disclosure would undermine PO’s ability to effectively manage the claims and achieve the fairest and most legally justified outcome for the outstanding claims, as disclosure now would reveal PO’s hand prior to and/or during the midst of ongoing legal disputes and create an unlevel playing field. It would also hinder its ability to seek ongoing free and frank legal advice on the matter due to concerns of premature public disclosure, as any guiding principles and claim guidance evolves.
The PO’s response to the Appellant dated 4 June 2025 (OB 66) identified the following:
The documents contain embedded case studies and examples that are integral to understanding the guidance and have been updated to reflect decisions made by the Panel, where those decisions provide potential precedential guidance for case assessments. Redacting these would compromise the integrity and clarity of the documents.
The highly contentious and well-publicised nature from the mainstream media has caused distress to claimants.
The witness statement of Caroline Whitehall identified the following harms:
If the confidential space for PO to seek and receive legal advice were undermined “there is a real risk that PO’s ability to take legally sound and consistent decisions would be impaired. That would, in my understanding, be contrary to the public interest in the effective administration of the scheme, because it could result in either over-redress, with implications for the public purse, or under-redress, with adverse consequences for claimants” (paragraph 30, OB A10)
Factors in favour of disclosure
From the evidence and submissions provided by the parties, we identified the following factors in favour of disclosure:
The PO in its letter dated 4 August 2025 to the IC (OB p90ff) identified the following factors in favour of disclosure:
Disclosure would provide the public with insight into the factors considered by the Panel when assessing individual claims made to the HSS.
The Horizon IT scandal has generated significant public interest, including through the Inquiry.
The IC identified the following factors in favour of disclosure at paragraphs 21 and 22 of the DN
There is a significant public interest in the Horizon IT scandal and in the Panel assessing individual claims made to HSS to work out effectively what compensation is due and to get that compensation to them as quickly and efficiently as possible.
The withheld information affects a significant number of Postmasters and there is significant public interest in ensuring they receive the compensation they deserve. Disclosure of the withheld information would assist with that and help those Postmasters and their legal representatives see in detail what principles come into play, how PO interprets the principles and what legal advice and guidance it is acting on during the claims process.
The Appellant raised in her GOA that the PO has chosen to structure its decision-making process in an apparently iterative fashion such that it regularly obtains advice to update the principles it applies should not be allowed to act as a barrier to public understanding of those principles. (OB A30)
The Appellant raised in her complaint to the IC (OB B61) that the significant number of claimants involved in HSS and the significant level of public funds required to meet their compensation call for the highest degree of transparency in the operation of HSS.
The Appellant raised the following points in her email to the IC dated 17 July 2025 (OB B80):
“It is wholly inconsistent that guidelines which refer to the HSS Appeals process have been made available to claimants and to the wider public for scrutiny, whilst the fundamental guidelines which underpin the scheme itself (and which may have a bearing on why a case ends up in the Appeal process) are being withheld by the Post Office.”
“In deliberately denying access to the fundamental Guiding Principles of the HSS, the Post Office is exacerbating the process for claimants by which they are able to challenge offers which they consider to be way below the value of their claim”.
The Appellant’s witness statement at paragraphs 16 and 17 identified the following reasons why the documents should be disclosed.
“Those documents would help applicants to the scheme to understand the principles on which the scheme is operated and so help them to understand why and on what basis their individual claims may have been delayed, rejected or granted seemingly inadequate sums in compensation.”
“There is a broader public interest in the workings of the HSS being transparent, thereby enabling all members of the public to see and understand how the Post Office has acted in its role as the administrator of the HSS, and how it has gone about awarding compensation to those who suffered loss and damage as a result of the Horizon IT scandal”
Factors in favour of maintaining the exemption
From the evidence and submissions provided by the parties, we identified the following factors in favour of maintaining the exemption:
The PO, in its letter dated 4 August 2025 to the IC (OB p90ff) identified the following factors in favour of maintaining the exemption:
There is a strong inherent public interest in maintaining the confidentiality of legal advice. It enables organisations to seek legal advice in confidence and its preservation is considered fundamental to the proper functioning of the legal system.
The public interest is already met through information available on the PO’s website, including eligibility criteria, terms of reference, application forms, FAQs and guidance on consequential loss principles.
“The CAG and CAPs were prepared as internal working documents for [the HSS Panel and PO’s lawyers, HSF]. They were not intended to be a summary of how HSS claims are decided by the Panel or as an aide to compensation applicants. They are not crafted in terms designed for third parties who may not appreciate how the doctrine of precedent applies. For example it may not be clear on its face that each case is decided on its own merits and in light of the Panel’s wide and overriding discretion to make offers which are “fair” when considered in the round.”
“Any new case is capable of setting a new principle and these principles are merely a ‘guide’ to assist the [Panel], rather than being any rule on what they can or cannot do.”
The IC identified the following points in favour of maintaining the exemption at paragraphs 29-32 of the DN (OB 10)
There is an inherent public interest in protecting legal professional privilege. This serves the administration of justice and safeguards the right of any person to obtain entirely free and frank and realistic legal advice.
The withheld information is very much live and used by PO (at the time of the request and now) to determine the claims.
The witness statement of Caroline Whitehall identified the following:
“the CAG and CAP do not determine the outcome of any individual claim…they are not inconsistent with publicly available guidance and are not required in order for applicants to understand the basis on which their claims have been assessed.” (Paragraph 31)
“Disclosure of the CAG and CAP would not advance public understanding of individual decision or the operation of the scheme, given their nature as technical legal documents” (paragraph 32)
Discussion and conclusions on public interest
In relation to the harm which would be caused by disclosure, and thus the significance of the public interests, we considered each of the points raised by the parties and found the following:
We considered that the key harm in the context of this case was that if the CAP and CAG were disclosed, this would have a significant negative effect on the operation of LAP and LPP generally. If public authorities wanting legal advice to deal with complex and difficult decisions knew that that advice was likely to be published at a point where it was still being used, this would severely hamper their ability (and indeed willingness) to have a free and frank exchange of advice with their lawyers and thus negatively affect the way in which public authorities and legal professionals deal with such advice.
We accordingly considered that the need for LPP to be preserved weighed strongly in favour of maintaining the exemption. It is not overstating to say that, as was set out in the Derby Magistrates Court case referred to above, LPP is a fundamental condition for the administration of justice and there would need to be very significant countervailing public interests to outweigh the need for it.
In considering factors in favour of maintaining, we also gave some weight to the following:
These are live and evolving documents which are still in active use, so the legal advice they contain is still current; as noted above, disclosure could have a negative impact on the fairness of any redress applications if this was disclosed prior to these being finally concluded. This was as much the case at the point of responding to the request as it is today.
The fact that the Inquiry, as the public mechanism for accountability and transparency, did not have these documents and did not feel the need to call for them. It is the role of the Inquiry to ensure consistency and this would not be served by disclosure of these documents.
Documents which have been disclosed, which include not only the public facing documents such as the TOR for HSS and the Panel which were available at the time of responding to the request, but also now the redacted template offer and annex, give a comprehensive breakdown of how decisions are made and how the various dispute resolution processes work which is sufficient to understand the figures.
We also gave medium weight to the fact that the public purse was exposed because of the fact that this is being used to pay compensation.
In considering the factors weighing in favour of disclosure, we recognised that the most weighty of these was the need for transparency, which we acknowledged was high given the nature of the IT Horizon scandal and its impact. However, we gave less weight to this than to the need for LPP because at the point of responding to the request the Inquiry had completed its evidence gathering phase and there had been a significant amount of information placed into the public domain as a result of that.
We also gave some weight to the following:
We gave some weight to the criticisms made by the Inquiry of how HSS was managed, while noting that the Volume 1 report was not published until after the response to the request although oral and written evidence was at that point public.
We considered that there was low to medium weight in taxpayers needing to scrutinise HSS and the compensation scheme.
We gave medium weight to the fact that the HSS scheme is a fast-track scheme which largely replaces litigation and is not subject to independent judicial scrutiny in the same way as civil or criminal litigation would be.
We gave little weight to the Appellant’s arguments about the need for consistency, because it was not clear how disclosure of these documents would deliver that. Similarly, we gave little weight to the arguments about disclosure increasing the ability of individuals and the public to understand the claims process, for the reasons discussed above.
We gave some weight to the fact that external agencies were questioning the way in which HSS was operating, but considered that disclosing the documents would not address this to any significant degree. Similarly, we gave limited weight to the evidence in the YouGov survey indicating dissatisfaction with offers.
Taking all these reasons and all the circumstances of the case into account, although our decision was finely balanced, we concluded that the public interest weighed in favour of preserving rather than eroding LAP. This led us to conclude that the balance weighed in favour of maintaining the exemption under section 42(1) and that the Withheld Information, namely the CAG and CAP, should not be disclosed for that reason.
The appeal is therefore dismissed.
Signed: Judge Harris Date: 23 July 2026