Judicial review – disclosure and the duty of candour – updates for local government lawyers

Introduction

1. The general principles concerning the duty of candour are clear and well-established:
   1. A public authority defendant in judicial review proceedings has a duty “to co-operate and to make candid disclosure by way of affidavit of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged”: Belize Alliance of Conservation Non-Government Organisations v Department of the Environment [2004] UKPC 6 at §86.
   2. The importance of the duty “is impossible to overstate” and every failure on the part of a public authority defendant “is inimical to the rule of law”: R (Saha) v Secretary of State [2017] UKUT 17 (IAC) at §§47-48.
   3. The duty arises because “public authorities are engaged in a common enterprise with the Court to fulfil the public interest in upholding the rule of law”: Administrative Court Guide 2022 at §15.3.1.

2. Nevertheless, there remains ambiguity about the application of the duty in particular circumstances. This is periodically reflected in judgments of the senior courts. In this article, we will, by reference to recent case law, consider two areas of ambiguity. First, when is the duty of candour engaged? Second, once the duty is engaged, what must be provided? Our analysis will be centred on those areas of importance to local government lawyers defending judicial review claims, especially judicial review claims concerning commercial transactions.

When is the duty of candour engaged?

3. The duty “endures from the beginning to the end of the proceedings”: R (Bilal Mahmood) v SSHD [2014] UKUT 439 at §23. As a statement of general principle, this is unobjectionable. But what does it mean in practice? Unfortunately, it depends on who you ask.
   1. One answer can be found in a Treasury Solicitor’s Department (the predecessor body to the Government Legal Department) publication dated January 2010, “Guidance on Discharging the Duty of Candour and Disclosure in Judicial Review Proceedings” (the “Treasury Solicitor’s Guidance”). According to the Treasury Solicitor’s Guidance, the duty applies “to every stage of the proceedings including letters of response under the pre-action protocol, summary grounds of resistance, detailed grounds of resistance, witness statements and counsel’s written and oral submissions”: §1.2 (our emphasis). Adopting this approach, the duty of candour would apply at the pre-action stage.
   2. A different answer can be found in a recent judgment of the Divisional Court in R (British Gas Trading and others) v Secretary of State for Energy Security and Net Zero [2023] EWHC 737 (Admin) (“British Gas”) in which Singh LJ and Foxton J held that “it is usually the grant of permission which is the trigger for the duty of candour and cooperation with the Court to arise”: §145 (our emphasis). This answer is not without precedent: see, for example, Cranston and Lewis JJ in “Defendant’s duty of candour and disclosure in judicial review proceedings: A discussion paper” (28 April 2016). Under this approach, the duty of candour is only engaged once permission has been granted.
4. Which is the right approach? Until there is an express amendment to CPR 54 (and the relevant Practice Directions), there will continue to be some ambiguity. The prudent approach is that embodied in the Treasury Solicitor’s Guidance, i.e., that the duty is engaged at the outset of proceedings. Helpfully, this approach has also received recent judicial endorsement, again in the form of a Divisional Court. In R (HM & Ors) v Secretary of State for the Home Department [2022] EWHC 2729 (Admin), Edis LJ and Lane J said (at §16) the following of the approach outlined in the Treasury Solicitor’s Guidance:“We proceed on the basis that that guidance accurately reflects the law. It is an obligation which the executive has assumed on the advice of the Treasury Solicitor, as it was, and the court operates on the basis that that is what is expected of Government defendants when dealing with judicial review proceedings.”

5. This judgment was solely concerned with the duty of candour and, in this case, the Secretary of State’s failures in relation to the duty. As a detailed examination of the scope of the duty, it is therefore authoritative, and one that we would recommend to lawyers in the public sector dealing with judicial review claims: the duty of candour applies as soon as the prospective defendant is aware that someone is likely to test a decision or action affecting them.

Once the duty of candour is engaged, what should be provided?

6. The duty is not limited to disclosing documents, such as submissions or decision-records. The duty is instead information-based. A public authority must explain its decision-making process, not simply disclose documents created in that process. Therefore, providing a “pile of undigested documents” may not be sufficient: R (Khan) v SSHD [2016] EWCA Civ 41 at §46.
7. What does this mean in practice? Context is, of course, all. However, in complex cases with a commercial context, the volume of disclosure may need to be more than one would ordinarily expect in a judicial review claim. For example, in British Gas, the Divisional Court noted that there had “been a very substantial degree of disclosure by the SoS and the Interested Parties in this case, much more than would normally be seen in the Administrative Court” (§20). The Court went on to say:“In these circumstances, and without suggesting that such an enquiry is necessary or appropriate in a judicial review claim, we have been able to reach clear conclusions as to the background facts which we set out below. In doing so, we have kept in mind the numerous judicial observations as to the greater reliability of the contemporaneous documents or inherent probability in determining what has happened, than the recollection of a witness”.
8. Similar approaches can be seen in other recent judicial review claims concerning commercial transactions. For example, in R (Good Law Project) v Secretary of State for Health and Social Care [2022] EWHC 2468 (TCC), the defendant Secretary of State provided extensive disclosure (by the time of the hearing, some 20 hard copy bundles amounting to over 6,800 pages). This approach was not deprecated by the Court. Indeed, the Court noted its benefits: it provided a complete insight into the impugned decision-making process of the defendant.
9. In both the cases cited above (and indeed in those cases covering the same matter not listed above), the Court has said that this level of disclosure, almost akin to standard disclosure, will not be the norm in most judicial review challenges. However, where there is a challenge to a commercial decision of a public authority defendant, such as a local authority, a defendant may increasingly be subject to an expectation that it will provide an additional level of disclosure to explain the impugned decision-making process. One might term this ‘disclosure plus’.
10. Local authorities are often resource constrained. In such circumstances, a local authority defendant may decide that it will not take an active part in the proceedings. However, a non-participating defendant still owes a duty to assist the court, and, where necessary, provide disclosure.
11. For example, in R (Midcounties Co-Operative Ltd) v Forest of Dean DC [2015] EWHC 1251 (Admin), the defendant local authority decided that it would not take an active part in the claim (due to financial constraints) but that it would support the interested party developer’s opposition to it. Singh J held that the defendant local authority at least needed to consider whether it had complied with its duty of candour by disclosing all relevant documents. Simply doing nothing was not an option. Local authority lawyers should bear this in mind.

Conclusion

12. A variety of adverse consequences may arise where the duty of candour is breached by a defendant. The consequences can extend from adverse costs orders to allowing the Court to draw adverse inferences of fact. Therefore, it is imperative that defendants understand the scope of the duty and what is expected of them.

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. If you would like further advice and assistance in relation to any of the issues raised in this article, please contact us today by telephone or email enquiries@sharpepritchard.co.uk.