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11 June 2009 / Harriet Dedman , Charles Brasted
Issue: 7373 / Categories: Features , Judicial review , Public
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A model consultation?

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Charles Brasted & Harriet Dedman consider confidentiality & disclosure in public consultations

Two recent decisions in judicial review challenges against the National Institute for Health and Clinical Excellence (NICE)—R (Eisai) v NICE [2008] EWCA Civ 438 [2008] All ER (D) 02 (May) and R (Servier Laboratoires) v NICE [2009] EWHC 281 Admin, [2009] All ER (D) 217 (Feb)—cast significant light on the standard to be applied to the requirement of adequate disclosure in public consultations, and how the competing demands of confidentiality and disclosure are to be balanced. 

Giving the judgment of the Court of Appeal in Eisai, Lord Justice Richards noted (at [33]) that the judgment “depends not on the resolution of any real dispute about the legal principles, but on the application of well established principles to the particular context”.

That may be somewhat modestly to underplay the assistance that the judgment provides those seeking to identify with precision the standards to be applied, but it is an accurate reflection of the legal background against which these cases fall

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