ZL Duties of Candour

DUTIES OF CANDOUR

Zoë Leventhal

10 February 2015

Introduction: duties of candour

• 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

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)

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.)

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.

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)

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);

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).)

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

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.

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;

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).

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.”

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

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”

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.

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.”

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];

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)