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Claimant’s Duty of Candour and Disclosure in Judicial Review Proceedings (9 March 2015)

Date: 09/03/2015
Duncan Lewis, Main Solicitors, Claimant’s Duty of Candour and Disclosure in Judicial Review Proceedings

The Claimant is subject to a continuing duty to make a full and frank disclosure when making a claim for Judicial Review. This duty is broad and the Court will put faith in the Claimant to inform the Court of all material facts known to them.

This duty is not confined to the material facts: it extends to all relevant matters, whether of fact or of law. The importance of complying with the duty cannot be overstated, given the potential consequences to any interim order made, in relation to costs and, indeed, to the whole proceedings and to the practitioners themselves. This duty gives rise to a weighty responsibility, as articulated by McCloskey J recently in R (on the application of Bilal Mahmood) v. SSHD [2014] UKUT 00439 (IAC).

The Claimant’s duty is not debased by the Defendant’s own bilateral duty of candour to make full and frank disclosure of material relevant to the decision under challenge. Judicial Review has been described as ‘a process which falls to be conducted with all the cards face upwards on the table and [where] the vast majority of the cards will start in the [public] authority’s hands’ (per Sir John Donaldson in R v Lancashire County Council, ex parte Huddleson [1986] 2 All ER 941). The Treasury Solicitor’s Department has its own practical guidance addressed to departments and litigation case handlers intended to help them to discharge their duty as a public servant to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide (see ‘Guidance on Discharging the Duty of Candour and Disclosure in Judicial Review Proceedings’, January 2010, which was issued in response to Al-Sweady judgments ([2009]EWHC 1687 (Admin) and [2009] EWHC 2387 (Admin)), in which the Court found that the Secretary of State “consistently and repeatedly failed to comply with [his disclosure obligations”).

This cardinal principle is often neglected as a result of modern reforms under which Judicial Review claims now proceed on an inter partes basis, as opposed to ex parte. A further factor which contributes to this hallowed duty being overlooked is the fact that, in the context of applications for judicial review, disclosure by list in accordance with the provisions of CPR Part 31 is not usually required unless the Court orders otherwise (see PD 54A paragraph 12.1). The obligation of candour is one of the reasons why the rules as to standard disclosure do not apply to applications for judicial review as a matter of course. The very nature of the judicial review enquiry, which, characteristically, raise an issue of law, the facts being common ground or relevant only to show how the issue arises, is also another reason why Judicial Review has been excluded from the CPR disclosure regime. Nonetheless, Claimant’s duty of full and frank disclosure does not stop when proceedings are instituted and it continues to apply with full vigour at all stages of the Judicial Review proceedings.

This duty of candour is all the more important when making applications for interim injunctions (see R (MS) V Secretary of State for the Home Department [2010] EWHC 2400 (Admin)) for the importance of disclosure in immigration removal injunction cases). Those who seek such a relief are under a duty to make the fullest and most candid and frank disclosure of all the relevant circumstances known to them. In immigration cases, this includes promptly eliciting and supplying the immigration history.

The key elements of the duty and compliance

a. The Claimant must show the utmost good faith and disclose its case fully and fairly. This forms part of “the general obligation on parties conducting judicial review proceedings to do so openly… with the cards face up” (R (Gillan) v Commissioner of Police of the Metropolis [2004] EWCA Civ 1067 para. 54).

b. The Claimant must put before the judge all relevant material and, in particular, any material which may be adverse, or may appear to be adverse. In R (I) v Secretary of State for the Home Department [2007] EWHC 3103 (Admin), Collin J observed that ‘…that means that [those who bring Judicial Review proceedings] must put before the judge all relevant material and in particular any material which may be adverse, or may appear to be adverse. They must not leave the situation that the Judge does not have the full picture in order to make the relevant decision…’ This also includes a duty to cite adverse authority.

c. This is a continuing duty: ‘…if there are further documents which should be disclosed but which cannot be obtained by the time it is necessary to lodge the claim, they should still be obtained as soon as possible thereafter and sent to the court..’ (R (MS) v Secretary of State for Home Department [2010] EWHC 2400 (Admin));

d. Claimants must update the court on any material change of circumstances (R (Tshikangu v Newham London Borough Council [2001] EWHC Admin 92 at para 23).

e. In certain judicial review cases in UTIAC, a comprehensive witness statement, addressing all material issues and attaching all available relevant documents, signed by the Applicant, will be required: ‘…the need for this will be dictated by a combination of the particular context, the Applicant’s duty of candour to the Upper Tribunal, good practice and the overriding objective…’ (R (on the application of Bilal Mahmood) v. Secretary of State for Home Department [2014] UKUT 00439 (IAC) para. 20 );

f. In relation to those proceedings before the UTIAC, under rule 28 (4)(g) of the Tribunal Procedure (Upper Tribunal) Rules 2008, there is a requirement to lay out the facts: this means all material facts.

Solicitor’s duty

In R (on the application of Al Sweady and others) v The Secretary of State for Defence [2009] EWHC 2387 (Admin), the Court emphasised the Solicitor’s duty in litigation to make sure that the client is fully aware of the duty to ensure that proper disclosure is given and the duty to go through the documents disclosed by the client to make sure, as far as possible, that no documents have been excluded. Drawing on Matthews and Malek on Disclosure, the Court of Appeal in Hedrich v Standard Bank London Ltd [2008] EWCA Civ 905 has provided a useful summary of the Solicitor’s duty on disclosure. Although, this was in the context of banking litigation, where the CPR disclosure regime operated, this approach should be closely mirrored in Judicial Review applications in order the requirements of the duty of candour are met.

Failure to comply

The consequences of failure to comply with the duty of candour can be serious both to the proceedings and to the practitioners themselves. The Courts have recognised the deterrent effect of upholding and enforcing the duty of candour. In deciding what action to take, the Court may take into account the gravity of the breach, the excuse tendered, the severity and duration of any prejudice caused to the other party, whether the consequences of the breach were remediable/remedied and proportionality.

The consequences of a failure to comply with the duty of candour/full and frank disclosure may include, but not limited to, the following:

a. A discharge of the interim relief order (see R (MS) v Secretary of State for the Home Department [2010] EWHC 2400 (Admin) where injunction restraining removal was discharged because of, inter alia, material non-disclosure in the original ‘without notice’ application);

b. A refusal to grant permission, whether or not there might be an arguable claim (per Collins J in R (I) Secretary of State for the Home Department [2007] EWHC 3103 (Admin));

c. A finding that there has been a misuse of Court process;

d. Adverse costs implications, which may extend to practitioners concerned:

i. Wasted costs order against the practitioners: See R v Secretary of State for the Home Office, ex p Shahina Begum [1995] COD 176, where wasted costs order was made against solicitor and barrister, for failure to put Treasury Solicitor’s letter before the Court and refusal to send them the bundle, despite a request to do so;

ii. Claimant being required to pay the Defendant’s costs on an indemnity basis;

iii. Claimant being refused costs of Judicial Review proceedings: See R v Liverpool City Council, ex p filla [1996] COD 24 where the Claimant was refused costs because of serious breach of duty of disclosure.

e. The convening of a Hamid hearing (see R (Hamid) v Secretary of State for the Home Department [2012] EWCH Civ 3070 (Admin)); and

f. The referral of practitioners to the appropriate professional body.

Given the above list of potential untoward consequences, the solemn nature of this duty cannot be overemphasised.

About the Author: Raja Rajeswaran Uruthiravinayagan

Raja Rajeswaran joined Duncan Lewis in April 2012 and is currently a Solicitor in the Public Law Department. He specialises in Judicial Review claims related to his main practice areas. He is committed to improving access to justice and to achieving social justice through the use of law.

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