Draft Judgment Circulation: Limited Scope of Party Comment, Confidentiality, and the Line Between Informal Case-Management and a “Decision in Principle”

1) Introduction

People Over Wind v Commissioner For Environmental Information and Anor [No. 2] [2026] IEHC 68 is a procedural judgment of the High Court (Humphreys J.) arising out of ongoing judicial review proceedings concerning the operation of the European Communities (Access to Information on the Environment) Regulations 2007–2014 and, in particular, the handling of an appeal by the Office of the Commissioner for Environmental Information (“the commissioner” / OCEI).

The immediate context was the court’s intention (signalled in People Over Wind v. Commissioner for Environmental Information (No. 1) [2025] IEHC 593) to make a reference to the Court of Justice of the European Union (CJEU). Following circulation of draft judgments (both the present judgment and, “exceptionally”, a second draft of the judgment for reference), the commissioner raised concerns about (i) how certain investigator communications were characterised; (ii) whether remittal caused material delay; and (iii) wording suggesting the commissioner remained “seized” of the appeal after remittal.

The judgment therefore addresses two linked themes: (a) the High Court’s draft judgment procedure—its purpose, limits, and confidentiality; and (b) the proper understanding of informal investigative communications and how they relate (or do not relate) to a “decision in principle”, particularly in the context of remittal and delay.

2) Summary of the Judgment

  • The court sets out a structured “rules of engagement” for party comments on draft judgments: comments are confined to error-correction and tightly defined procedural/wording matters and must not be used to re-argue the merits.
  • The court emphasises that draft judgments are not public domain materials and issues an express, immediately effective direction restricting transmission/publication, with reference to the interests of the administration of justice.
  • On the commissioner’s factual/characterisation points, the court accepts some corrections as essentially semantic (notably, that exploratory settlement communications should not automatically be labelled a “decision in principle”), but maintains that once a “lead case” strategy was adopted, remittal of the present matter became effectively inevitable from at least September 2024.
  • On delay, the court rejects the submission that remittal caused no delay; it finds delay is uncertain in precise measure but likely “more than de minimis”, suggesting a conservative estimate of at least two months.
  • On wording implying the commissioner remained “seized” post-remittal, the court treats the issue as semantic and deletes the impugned wording as unnecessary.
  • The operative outcome is an order that the judgment for reference be reconfigured to reflect the matters addressed.

3) Analysis

A) Precedents Cited

i) People Over Wind v. Commissioner for Environmental Information (No. 1) [2025] IEHC 593

This is the procedural and substantive springboard for the No. 2 judgment. In No. 1, Humphreys J. indicated an intention, “in principle”, to refer issues to the CJEU. No. 2 clarifies the mechanics by which that intention is operationalised, including how parties may comment on drafts and how the court will deal with suggested corrections. It also shows the court’s concern to ensure that the factual and procedural narrative underpinning a CJEU reference is expressed with precision, given the commissioner’s insistence that the decision-making process be “reflected … in a more developed way”.

ii) O'Sullivan v. Health Service Executive [2023] IESC 11

The Supreme Court is cited for the proposition that parties should not treat procedural accommodations as an entitlement to “elaborate procedures at every point” (para. 39). Humphreys J. uses this to justify a disciplined approach to draft judgment circulation: it is a concession to correct error, not a re-opening of the hearing. The citation supports a broader case-management principle—procedural fairness does not require maximal procedure.

iii) O'Sullivan v. Sea Fisheries Protection Authority [2017] IESC 75

This authority is deployed to counter the “serious error” of assuming that fairness requires procedures approximating a criminal trial. It anchors the court’s insistence that the draft judgment process remain narrow and functional. The precedent thus informs the judgment’s underlying philosophy: proportionate administrative justice, rather than adversarial procedural escalation.

iv) Attorney General v. Crosland (No. 2) [2021] UKSC 58

This UK Supreme Court decision is cited for why restricting publication of draft judgments serves the administration of justice. Humphreys J. relies on it to support a clear direction that draft judgments are not for publication and should only be shared privately for the legitimate purposes of the litigation, subject to similar restrictions down the chain of communication. The case is used to justify confidentiality not merely as etiquette but as institutional necessity.

v) OCEI v Coillte & Ors [2023] IEHC 227 and Commissioner for Information v People over Wind & Coillte [2023] IEHC 227

These titles (as they appear in the judgment text) inform the background dispute about Coillte’s ability to rely on FOI-style exemptions in the AIE context. They are relevant to the commissioner’s justification for remittal and to the parties’ positions on whether remittal was necessary or caused delay. While No. 2 is not the merits determination of that dispute, it shows how the 2023 High Court authority shaped the commissioner’s “lead case” approach and the perceived need to re-evaluate pending appeals.

vi) Right to Know v Department of Housing

Though not cited with a law report reference, it is treated as the designated “lead case” chosen by the OCEI for applying the 2023 High Court judgment to AIE appeals. Its practical influence in No. 2 is significant: once it was chosen as the lead case, the court considers that remittal of the present case became effectively inevitable, and that this choice frames the counterfactual analysis of delay.

B) Legal Reasoning

i) The draft judgment procedure: purpose, boundaries, and court control

The court articulates a structured approach to draft circulation. A draft is “without prejudice” to the court’s final decision; the process is for identifying errors, not for “reargu[ing] the substance”. The judgment lists an eight-part taxonomy of permissible comment—ranging from typographical/factual/legal errors and redaction requests to narrow observations where the court proposes “pivotal reliance” on material not previously adverted to.

Crucially, the judgment asserts that what happens next is “entirely a matter for the court”—the court may list the matter, amend, or issue judgment without further notice. This is an explicit statement of judicial ownership of reasons, coupled with a pragmatic recognition that controlled opportunities for correction can improve accuracy without converting judgment-writing into iterative litigation.

ii) Confidentiality of drafts as a direction of the court

The court goes beyond convention and frames confidentiality as an enforceable direction: draft judgments are not public domain; they may be shared with lawyers and clients but are not intended for publication or broader transmission. Anyone with notice of the draft is directed not to transmit information about its content or outcome except privately for legitimate litigation purposes and only subject to equivalent restrictions on recipients.

The explicit reliance on Attorney General v. Crosland (No. 2) [2021] UKSC 58 serves to locate this in a wider common-law understanding: premature disclosure risks undermining orderly adjudication, judicial deliberation, and the integrity of the final, authoritative text.

iii) Informal investigation vs “decision in principle”: drawing the line

The commissioner objected to an investigator’s July 2024 email being treated as a “decision in principle” to remit, emphasising OCEI’s inquisitorial and informal settlement functions. The court accepts that exploratory communications should not, by themselves, be labelled a “decision in principle” and acknowledges the operational necessity of informal settlement exploration.

However, the court distinguishes between exploration and inevitability crystallising from institutional case-management. On the court’s account, once a different appeal was selected as the “lead case”, the present case’s remittal trajectory was effectively set. The court thus recognises a category of “decision in principle” that can arise not from a single email but from the adoption of a broader strategy that makes a later formal decision practically inevitable.

iv) Remittal and delay: counterfactual reasoning

A core dispute was whether remittal caused delay. The commissioner argued (in substance) that remittal was, viewed at the time, potentially the quickest route because Coillte might have released information on reconsideration. The court’s response has two strands:

  • Ex post rationalisation concern: the court notes that the “first we heard” that remittal was the quickest solution was during the judicial review—suggesting a gap between decision and articulated reasons (even if No. 2 ultimately treats much of the dispute as semantic and reframes rather than finally adjudicates the merits).
  • Counterfactual comparator: the court rejects “zero delay” by comparing what happened with what might have occurred had the present case been treated as the lead case and progressed directly. On that approach, remittal pushed out the timing of a substantive resolution; the court estimates at least two months’ delay on a conservative view and “quite possibly more”.

Notably, the judgment also identifies a subtler form of delay: delay caused by considering remittal as an option over an extended period (“unknown duration”), even before any formal remittal decision.

v) “Seisin” and finality: a semantic correction

The commissioner objected to wording suggesting he “remained seized” of the appeal after remittal, contending that the December 2024 remittal decision was final and ended the OCEI’s seisin. The court treats this as semantic and removes the wording as unnecessary. The reasoning illustrates the draft process functioning as intended: removing phrasing that could be misconstrued without needing to decide a deeper doctrinal point about finality in administrative appeal structures.

C) Impact

i) A practical template for draft judgment circulation in Ireland

The judgment is likely to be cited as a pragmatic statement of how Irish courts may circulate drafts and the limited purposes for which parties may comment. While courts have long corrected slips and invited limited observations, this judgment provides an unusually explicit, itemised framework that may be adopted (or used as a reference point) in complex public law litigation, especially where accuracy of procedural history matters for CJEU references.

ii) Strengthening confidentiality norms with an express direction

By making confidentiality an “immediately effective direction” and grounding it in authority, the judgment may influence professional practice around draft handling—particularly in high-profile public law cases where premature disclosure could affect public commentary, market or policy reactions, or the fairness of related proceedings.

iii) Administrative decision-making: comfort for informal engagement, but caution on inevitability and delay

The court’s acceptance that investigators may explore settlement options without that being treated as a binding “decision in principle” provides reassurance to inquisitorial bodies. At the same time, the judgment signals that institutional strategies (like selecting a lead case) can crystallise into something the court will treat as practically determinative, and that the court will scrutinise delay not only from formal decisions but also from periods of indecision or “option-consideration”.

4) Complex Concepts Simplified

Draft judgment
A not-yet-final version of the court’s reasons shared with parties to identify errors. It has no legal status until formally delivered/issued.
Without prejudice (in this context)
The draft does not bind the court; the court remains free to issue the final judgment in whatever form and content it considers appropriate.
Seised (or “seized”) of an appeal
Having the matter currently before the decision-maker with authority to decide it. If a matter is remitted, the appellate body may no longer be “seised” unless and until a new appeal arises.
Remittal
Setting aside a decision and sending the matter back to the original decision-maker to reconsider and make a fresh decision.
Lead case
A case chosen to be decided first to establish guidance for deciding other similar cases.
De minimis
So small as to be legally insignificant. The court found any delay was likely more than trivial.
Inquisitorial function
A process where the decision-maker actively investigates and seeks information (rather than relying solely on adversarial party presentations).

5) Conclusion

[2026] IEHC 68 is significant less for any final pronouncement on AIE merits and more for the discipline it imposes on the mechanics of judgment finalisation in complex public law litigation. It (i) provides a clear taxonomy of permissible party engagement with draft judgments; (ii) strengthens the confidentiality of drafts by express court direction supported by authority; and (iii) clarifies that informal settlement exploration should not automatically be treated as a “decision in principle”, while recognising that broader administrative case-management choices can nonetheless make outcomes effectively inevitable and potentially delay-inducing.

The judgment’s practical legacy is likely to be its articulation of a balanced model: accuracy-enhancing draft circulation under strict judicial control, confidentiality as a component of the administration of justice, and a realistic appraisal of how administrative strategies (lead cases, remittals) interact with timeliness.