The Court of Appeal has refused to quash the Judicial Appointments Commission’s decision not to promote a district judge to the circuit bench – but said the JAC should have been more open about who might be asked for references and criticised it for giving ‘confused and misleading feedback’.

Kate Thomas took the JAC to court to challenge the legality of its controversial statutory consultation process after receiving ‘mutually contradictory’ letters about why her application was unsuccessful.

Statutory consultation requires the JAC to consult a person who has held the office for which candidates are applying, or someone who has other relevant experience, to ensure that candidates are of good character and have the relevant capability.

Handing down judgment today in Kate Thomas v Judicial Appointments Commission, master of the rolls Sir Geoffrey Vos said the JAC failed to mention ‘sub-consultation’ in pre-application materials for Thomas’s competition, which was ‘neither appropriate nor fair’.

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While the use of sub-consultation was lawful, Vos said negative material ‘must be used fairly', candidates should be told how the sub-consultation process works and who might be consulted.

Vos said the JAC’s practice of not seeking consent from a consultee to disclose negative feedback to a candidate save for exceptional circumstances was an ‘inappropriate fetter on its discretion’.

When negative feedback is received, Vos said the JAC should decide between the following five options: disregard the negative material; explore the negative material at interview without making the candidate aware; put the gist of the negative material to the candidate while keeping the consultee confidential ; seek the consultee’s consent to disclose the negative material; even if consent is refused, decide to put the negative material to the candidate.