The Court of Appeal has dismissed the Minister for Transport’s appeal against an order allowing Osama Elsharkawy to inspect legal advice about the application of learner-driver penalty point rules. The court held that the Minister had relied on the advice in the litigation to justify a change in how the rules were applied. The ruling concerns inspection of the advice in the underlying judicial review; it does not decide that case’s substantive challenge to the change.
Elsharkawy received a learner permit in November 2012. In September 2021, while still a learner driver, he committed an offence that carried two penalty points. He paid the fixed charge notice. He had five points already recorded, bringing his total to seven. After receiving a full licence in October 2021, he was notified that he was disqualified from driving for six months.
The Road Traffic Act 2014 introduced a seven-point disqualification threshold for learner and novice drivers. The Department had initially applied that threshold only to people who entered the licensing system on or after 1 August 2014. In 2021, it changed its approach and began applying the threshold to all learner and novice drivers, including those already in the system before that date. Elsharkawy’s judicial review challenges aspects of that change, including its fairness and the reasons for it. The Court of Appeal did not determine those claims.
In the judicial review, the Minister’s statement of opposition and a verifying affidavit referred to legal advice received in 2014 and further advice in 2021. The affidavit said the later advice differed from the original interpretation and was reaffirmed by further advice. The Minister argued that these references did not waive legal professional privilege, which had also been expressly reserved.
The Court of Appeal found that the Minister went beyond a narrative reference to the advice. It relied on the difference between the advice at the two points in time as a reason for changing the rules and as support for the rationality of that change, should reasons be required. Because those matters are in issue in the judicial review, the court held that the advice had been deployed for a litigation advantage and that inspection was necessary for the fair disposal of those proceedings.
The court also rejected the Minister’s preliminary objection that Elsharkawy had not established that the advice existed in documentary form. It upheld the High Court’s inference that the advice had been put in writing. The court said the Minister would have to confirm positively if the advice was oral and no inspectable documents existed.
The appeal was dismissed on all grounds. The court proposed an order for the costs of the appeal in Elsharkawy’s favour, subject to any objection notified within 21 days and short written submissions, with a further 10 days for reply.