DUTIES OF CANDOUR
Zoë Leventhal
10 February 2015
Introduction: duties of candour
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Duty of candour– context
Overlap with disclosure
Content of the duty and who owes it?
Where we are :
– post-Tweed / HRA
– in light of Al-Sweady, the T Sol guidance, Shoesmith… how
far does this approach apply?
• Some recent cases
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Context pre-Tweed: candour not
disclosure?
• Default position – generally no normal disclosure (as defined by
CPR Part 31) in judicial review:
“Disclosure is not required unless the court orders otherwise”
(CPR Part 54, PD54A para 12)
• Two justifications pre Tweed:
– Disclosure not required because of the duty of candour;
– Disclosure not necessary due to nature of judicial review –
concerned with the legality of administrative decisions against
an (generally) agreed factual background
Context : What is the duty of candour?
• Candour: n. “the quality of being open and honest; frankness” (Collins
English Dictionary)
• A duty upon defendants to the Court arising from:
“relationship between the courts and those who derive their authority
from the public law, one of partnership based on a common aim,
namely maintenance of the highest standards of public
administration” (R v Lancashire CC, ex p Huddleston [1986] 2 All ER
941 (CA), per Donaldson MR at p 945);
• Also arises from the nature of judicial review itself, which is:
“a process which falls to be conducted with all the cards face upwards
on the table and the vast majority of the cards will start in the
authority’s hands… when challenged [the defendant] should set out
fully what they did and why, so far as is necessary, fully and fairly to
meet the challenge...” (Huddleston, per Parker LJ at 946)
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Context : what is the duty of candour 2
• The ‘real question’ is:
“whether in the evidence put forward on his behalf the Secretary of
State has given a true and comprehensive account of the way the
relevant decisions in the case were arrived at”
(Quark Fishing Ltd [2002] EWCA Civ 1409 (CA) per Laws LJ at 50);
• This requires telling the whole truth, not just those aspects which “[suit]
the department’s case… A statement that is only partially true is as
capable of being misleading as a statement that is untrue” (R
(Wandsworth LBC) v SoS for Transport [2005] EWHC 20 (Admin) per
Sullivan J at para 250).
Context: therefore disclosure not necessary….?
• Compliance with the duty of candour should, ordinarily, make
further disclosure unnecessary:
“On an application for judicial review there is usually no discovery
because discovery should be unnecessary because it is the
obligation of the respondent public body in its evidence to make
frank disclosure to the court of the decision making process”
(R v Secretary of State for the Home Department, ex p Fayed [1998]
1 WLR 763 (CA) per Woolf MR at pg 775.)
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Judicial review: limited factual inquiry?
• The second justification for excluding judicial review from the CPR
disclosure regime is that disclosure is not necessary due to the nature of
judicial review. Recognised by Lord Bingham in Tweed v PCNI [2006] UKHL
53 at para 2:
“The disclosure of documents in civil litigation [is]… a valuable means of
eliciting the truth… [but] the process of disclosure can be costly, timeconsuming, oppressive and unnecessary, and neither in Northern Ireland
nor in England and Wales have the general rules governing disclosure
been applied to applications for judicial review. Such applications,
characteristically, raise an issue of law, the facts being common ground or
relevant only to show how the issue arises. So disclosure of documents has
usually been regarded as unnecessary, and that remains the position.”
But – changing face of JR: the need for Tweed…
• Despite duty of candour, still a need for some further disclosure:
– Tensions between limited disclosure and well established need
for disclosure of relevant factual background under the duty of
candour;
– Previous principle was that reliance on witness statements was
acceptable unless prima facie evidence to suggest
incorrect/inadequate (cases summarised in Tweed at [29])
– Unsustainable following the introduction of the Human Rights
Act 1998 and general expansion of “proportionality” review,
which is a fact sensitive inquiry as at the date of the hearing.
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Tweed
• Compliance with the duty of candour and disclosure in judicial review
generally was revisited by the House of Lords in Tweed v Parades
Commission [2007] 1 AC 650;
• Tweed now the starting point for disclosure in JR;
• Challenge to the decision of the Parades Commission for Northern Ireland
to permit, on conditions, a proposed procession by a local Orange lodge
through a predominantly Catholic town on Easter day. The conditions
were challenged as unlawful, including on the basis of articles 9, 10 and 11
ECHR;
• The Chairman of the Commission swore an affidavit summarising the
effect of specific documents, including police reports and situation
reports, which were material to the determination;
• Application for specific disclosure of background documents
• Court (Lord Carswell at 39) found duty of candour had been fulfilled
Tweed: “more flexible and less prescriptive”
• The three speeches (Lords Bingham, Carswell and Brown) laid down the
following principles:
– “Where a public authority relies on a document as significant to its
decision, it is ordinarily good practice to exhibit it as the primary
evidence” and “the document itself is the best evidence of what it
says” (Lord Bingham, para 4).
– Defendants should “routinely” exhibit key documents to their written
evidence and “should be readier to do so whenever proportionality is
in issue” (Lord Brown, para 57).
– Applications for specific disclosure are “likely to increase in frequency,
since human rights decisions under the Convention tend to be very
fact-specific and any judgment on the proportionality of a public
authority's interference with a protected Convention right is likely to
call for a careful and accurate evaluation of the facts.” (Lord Bingham,
para 3)
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Tweed (cont.)
• However:
– Even in ‘proportionality cases’ “orders for disclosure should not be
automatic. The test will always be whether, in the given case,
disclosure appears to be necessary in order to resolve the matter
fairly and justly.” (Lord Bingham, para 3)
– Disclosure orders “are likely to remain exceptional in judicial review
proceedings, even in proportionality cases, and the courts should
continue to guard against what appear to be merely “fishing
expeditions” for adventitious further grounds of challenge.” (Lord
Brown, para 56);
– Even in cases involving issues of proportionality disclosure should be
carefully limited to the issues which require it in the interests of
justice. (Lord Carswell, para 32)
The approach to disclosure post-Tweed
• Where a defendant wishes not to exhibit a document(s) (because of, for
example, confidentiality or the volume of the material in question) the
judge to whom application for disclosure is made must then rule on
whether, and to what extent, disclosure should be made.
• The test will always be “whether, in the given case, disclosure appears to
be necessary in order to resolve the matter fairly and justly.” (Lord
Bingham, para 3);
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So – in reality:
• Disclosure in JR is simply achieved by a different means than CPR
Part 31, one suited to the particular nature of judicial review;
• Defendant’s duty of candour is a key part of that
• Where further disclosure under CPR Part 31 suitable / required by
the facts of the particular claim, the Court retains the power to
order disclosure and will do so more “flexibly”.
• Duty of candour but requirements must now be seen in light of
Tweed and …
The duty of candour gone wrong: Al-Sweady
• A claim regarding the treatment of Iraqi detainees by British Forces in
Southern Iraq in 2004. Claimants alleged serious breaches of Articles 2
and 3 ECHR, and sought a new independent investigation;
• Two judgments both of which deal with disclosure and PII issues:
[2009]EWHC 1687 (Admin) and [2009] EWHC 2387 (Admin). The Court
found that the SoS “consistently and repeatedly failed to comply with [his
disclosure obligations”;
• The Court stayed the proceedings and ordered the Defendant to pay the
cost of the whole proceedings on an indemnity basis (over £2m);
• The Court suggested that, in cases involving Articles 2 and 3 which require
the resolution of disputes of fact through cross-examination, the
disclosure process should be similar to that in CPR Part 31 ([15-27] of
[2009] EWHC 2387 (Admin).)
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The TSol Guidance
• In response to the Al-Sweady judgments, the Treasury Solicitor produced
‘Guidance on Discharging the Duty of Candour and Disclosure in Judicial
Review Proceedings’ (Jan 2010);
• Intended as a ‘practical guide’ addressed to departments and case
handlers;
• Purports to set out the law and standards:
– In discharging the duty of candour;
– Where ordered or appropriate, in giving disclosure under CPR Part 31.
Golden Rules
• The TSol guide lays down seven ‘Golden Rules for conducting a disclosure
exercise’:
– The litigation case-handler must have overall responsibility for the
disclosure exercise
– Take steps to preserve all potentially relevant documents as soon as
proceedings are likely
– Start early. At the outset formulate, record and implement a strategy
for conducting the disclosure exercise based on an understanding of
the issues in the case and knowledge of the systems for recordkeeping
– Maintain a record of what has been seen and by whom and the
decisions taken
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The Golden Rules (cont.)
– A document which is disclosable must be disclosed even if it is
embarrassing or damaging to a party's case
– Before giving inspection look at the output of the disclosure exercise
in the same way as the claimant will look at it - look to see what is
there and what is not there
– Devote sufficient resources from the outset to ensure that the process
can be, and is, conducted on time and properly
Further points from the TSol Guide
• The Guide also emphasises that:
– Case holders are subject to twin duties: (1) to ensure the client is fully
aware of the duty to ensure proper disclosure is given and (2) to
review all potentially relevant documents and ensure relevant
documents are disclosed;
– The duty of candour is a “weighty responsibility” and applies as soon
as the department is aware that someone is likely to test a decision
or action affecting them. It applies to every stage of the proceedings
including letters before action.
– The principles of CPR Part 31 should guide the fulfilment of the duty of
candour. Records should be kept of the searches made, with
justifications for their scope. Practical guidance is offered on the
division of roles and responsibilities and emphasises the need for
good record keeping and transparency;
– In suitable cases, disclosure lists should be provided even if not
ordered.
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Endorsement of the guidance
• The TSol guide was shortly followed by the judgment of Foskett J in R
(Shoesmith) v Ofsted and Others [2010] EWHC 852 (Admin);
• A judicial review by Shannon Shoesmith against the decision of the SoS for
Education to remove her from post;
• Following the hearing which ended on 12 October 2009, the Court was
contacted on 6 November 2009 by the Treasury Solicitor indicating that
further relevant documents had been discovered since the hearing;
• Emphasising that the duty of candour can require the production of
documents (following Tweed), and referring to the TSol Guide, Foskett J
concluded that Ofsted’s fulfilment of the duty of candour was “wholly
inadequate” and “has to represent a collective failure that, frankly, shakes
one's confidence that the scope of the duty was fully understood by those
involved.” The judge proposed to raise the matter with the Treasury
Solicitor.
Duty of candour: summary of basics
• An obligation to give a true and comprehensive account of the way the
relevant decisions were arrived at (Quark Fishing);
• A duty owed to the court, arising from the ‘cards face up’ nature of
judicial review (Huddleston);
• Extends to disclosures which will assist the claimant’s case, including
giving rise to new (and otherwise unknown) grounds of challenge (R v
Barnsley MBC, ex p Hook [1976] 1 WLR 1052 (CA) at 1058 per Denning
MR);
• An ongoing duty throughout the proceedings;
• Applies to both information and documents;
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The duty of candour: how to comply
• How to comply with the duty will depend upon the circumstances of the
case;
• In general terms, compliance is achieved by:
– Conducting a sufficient search for relevant material;
– Reviewing that material and disclosing the relevant
information/documents to the claimant and to the court;
– Keeping the situation under review and making any further disclosures
that the circumstances require;
Duties upon claimants
• Claimants are under a duty to make full and frank disclosure to the Court
of all material facts, as well as any known impediments to judicial review
(including alternative remedies, delay, adverse authorities, ouster
clauses);
• 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);
• 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 SoS for Home Department [2010] EWHC 2400
(Admin))
– 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).
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Duties upon interested parties
• Little judicial consideration of whether interested parties are subject to
the duty of candour;
• In Belize Alliance of Conservation Non-Governmental Organisations v
Department of the Environment [2004] UKPC 6, Lord Walker found that
the Interested Party (the Belize Electricity Company) was subject to the
duty of candour because:
“Although [the IP] has been put forward as an independent commercial
concern, it is clear from the evidence… that there is a very close identity
of interest between [the IP and the Defendant department]. They are in
effect partners in an important public works project” (Para 87).
• Unclear whether the duties of an IP depend upon the facts;
• The better argument is that, due to the ‘cards on the table’ nature of JR
the duty of candour should generally apply.
When does the D’s duty begin?
• The TSol Guide suggests that the duty of candour arises as applies as soon
as the department is aware that someone is likely to test a decision or
action affecting them.
• Arguably supported by paragraph 6 of the Pre-Action Protocol which
provides:
“This protocol does not impose a greater obligation on a public body
to disclose documents or give reasons for its decision than that
already provided for in statute or common law. However, where the
court considers that a public body should have provided relevant
documents and/or information, particularly where this failure is a
breach of a statutory or common law requirement, it may impose
sanctions.”
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When does the duty begin (2)?
• Orthodox position is that duty does not begin (being a duty to the court)
until judicial review proceedings commenced, or even until permission
granted
• In Marshall v Deputy Governor of Bermuda [2010] UKPC 9 at para 30
counsel for Appellant conceded that the duty of candour did not arise
until the grant of permission;
• Arguably consistent with the ability of the Defendant – in principle - at
summary grounds stage, to rely on procedural not substantive objections
to claim
• But: whether the duty of candour applies pre-permission was left open by
Munby LJ in R(I) v SoS for the Home Dept. [2010] EWCA Civ 727 at [50].
So …
• At no stage should the court be misled;
• If the merits of a claim are addressed before the grant of permission: as a
minimum, good practice to comply with the duty of candour and provide
documents requested (so far as relevant/proportionate);
• Underlying purpose of the protocol should be borne in mind…
• The searches etc. undertaken at that stage should be proportionate to the
early stage of the litigation;
• Central Government, to whom the Guide is addressed, should follow its
terms.
• Position may be strictly different from other defendants but standards set
are plainly good practice, dependent on circumstances of the case
• Remember (see cases below) – the Court is the ultimate audience of the
PAP so failure to be “up front” could in any event sound in costs
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Sanctions for non-compliance (I)
• The Court has a range of sanctions to punish parties who fail to comply
with the duty of candour/full and frank disclosure, including:
– Judicial criticism (eg. Quark Fishing at [49-55];
– Drawing of adverse evidential inferences (eg. R (Karas) v SoS for Home
Dept [2006] EWHC 747 (Admin) at [63-65].
– Formal orders for disclosure (Quark Fishing);
– Refusal/setting aside of permission (R (Khan) v SoS for Home
Department [2008] EWHC 1367 (Admin) at [12-13];
– Cost sanctions (Wandsworth LBC) v SoS for Transport at [71];
– Proceedings for contempt of Court (Re Downes’ Application [2006]
NIQB 79 at [5],[7]);
Sanctions for non-compliance (II)
• In addition to the duty of candour parties to the litigation owe to the
Court, legal representatives owe overlapping professional duties not to
mislead the Court.
• In R (I) v SoS for the Home Department [2007] EWHC 3103 (Admin) Collins
J considered a judicial review of the SoS’s refusal to treat further
representations as fresh asylum and human rights claims. The claim was
brought without the claimant disclosing the previous adverse decision of
an adjudicator in his case.
• Collins J reiterated that “it is essential that the full immigration history is
put before the judge” and that the failure to do “will readily be regarded
by the court as a failure to comply with the duty of candour”
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Sanctions for non-compliance (III)
• Collins J added that:
“Furthermore, it is a breach of the obligation of the solicitors and counsel if
there has been a failure to include material which is relevant, and particularly
if that material is or may be adverse to the claimant. If such a breach occurs,
it is open to the court, and the court will have no hesitation in so doing, to
make an order that the solicitors in question, and possibly counsel if counsel is
also shown to have been in breach of his duty, pay the costs incurred by the
Secretary of State in producing an acknowledgment of service personally, and
if there is a renewed application, and there should not be, possibly the oral
renewal as well. That will depend on the circumstances, but certainly orders
are likely to cover the acknowledgment of service.” (Para 11)
Recent cases on disclosure
• Post-Tweed approach to disclosure
• R (National Association of Probation Officers) v SoS for Justice [2014]
EWHC 4349 (Admin).
• Claimant sought to challenge proposed sale of community rehabilitation
companies (which supervise low risk offenders) to third parties. Specific
disclosure was sought of a number of documents relating to the testing of
the new system, so that, if the sale were to proceed, a rapid challenge
could be brought;
• Claimant, following Tweed, argued that Article 3 was engaged, as were
proportionality issues, requiring specific disclosure;
• Defendant resisted - application a shopping list of documents, the claim
was in reality a rationality challenge rather than a proportionality
challenge, and disclosure would create a “chilling effect” on frank
discussion.
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Recent cases on disclosure
• Ordering disclosure for some of what was sought, Irwin J held:
– Article 3 was engaged and that the Defendant’s “pleading point” was
“not the strongest category of argument given the importance of the
issues at stake” [20];
– Rejected the chilling effect argument [24]:
“…we are here dealing with officials who are alive to their
responsibilities, alive to the political (with a small P) space within
which they operate and it is highly unlikely that there will be any
chilling effect of a proper order for disclosure.”
– Determined that confidentiality concerns could be met by a
confidentiality ring and that this is by now “the appropriate
mechanism” for addressing confidentiality concerns [25]
Pre-action disclosure
• In BUAV v SSHD[2014] EWHC 43 (Admin) the claimant sought pre-action
disclosure on the grant and review of animal testing licences. It was
contented that such disclosure would confirm whether an arguable case
could be brought that the Defendant routinely underestimates animal
distress when granting such licences.
• Claimant sought disclosure under CPR 31.16(3):
“The Court may make an order under this rule only where…
(c) if proceedings had started, the respondent’s duty by way of standard
disclosure, set out in rule 31.6, would extend to the documents or classes
of documents of which the applicant seeks disclosure.”
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Pre-action disclosure
• The Defendant resisted disclosure on the basis that the Court lacked
jurisdiction:
– Argued CPR 31.16(3) only applies where there is, following the
initiation of proceedings, a duty of standard disclosure;
– No such duty exists in judicial review
• The Claimant argued that Rule 31.16(3) was not so limited. Alternatively,
the Claimant relied upon the Court’s inherent powers.
Pre-action disclosure
• Ousely J found:
– Where the Court orders disclosure, it does so under CPR Part 31;
– CPR 31.16 does not preclude pre-action disclosure in judicial review
“…there is no very clear meaning which can be given to the language
of rule 31.16… On balance, the least problematic approach is [the
Claimants]. It tackles what would be the greater concern, namely that
the documents sought should fall within the scope of standard
disclosure if ordered. It would not require any degree of forecasting to
be done.” [33]
– If CRP 31.16(3) did not allow pre-action disclosure in judicial review,
the Court would not have an inherent power to fill the gap [35];
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Pre-action disclosure
• Ouseley J cautioned:
– “I would expect successful applications to be made but rarely”
– “I am also wholly unpersuaded that pre-action disclosure is desirable in
judicial review proceedings…The Provisions of Part 54 work well
without it. The specific judicial review pre-action protocol is intended
to enable the claimant to see the colour of the defendant’s money,
and to judge whether proceedings should be brought, and, if so, on
what basis. Once proceedings have begun, the claim form with the
summary grounds of defence, often supported by evidence and aided
by the duty of candour, will show what the issues are.” [54]
Finally: further cases outside scope of today…
• Binyam Mohamed v SSFCA [2010] EWCA Civ 56
(redactions/publication)
• R (Public and Commercial Services Union) v Minister for Civil
Service [2011] EWHC 2556 (how far back candour goes)
• AHK v SSHD [2012] EWHC 1117 (Admin) (PII/closed material)
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