Colin Ricciardiello and Jonathan Blunden analyse the latest ruling on the duty of candour in judicial review proceedings.
Unlike in most civil claims, the parties in judicial review proceedings are usually not required to give standard disclosure, unless the court orders otherwise. However, judicial review proceedings are different. In judicial review litigation, parties are subject to a ‘duty of candour’ which requires them to co-operate and make candid disclosure of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the impugned decision. The duty imposes the greatest burden on defendants since it is invariably the decision-making of the defendant which is subject to legal challenge. However, as we have discussed previously (see most recently here), there remains ambiguity about the application of the duty in particular circumstances. As a result, the duty of candour continues to generate case law. In this article, we consider the latest judgment considering, amongst other things, the duty: Mr Justice Fordham’s judgment in R (Police Superintendents’ Association) v The Police Remuneration Review Body & Anor [2023] EWHC 1838 (Admin). First, we provide the background to the proceedings.
The background
In the proceedings, the Police Superintendents’ Association (the “Claimant”) challenged, by way of a claim for judicial review, two decisions relating to the setting of pay for police officers in England and Wales:
- The first impugned decision was that taken by the Police Remuneration Review Body (the “Review Body”) in respect of its Eighth Report (presented to Parliament on 19 July 2022) and its recommendation in that report of a flat rate pay increase of £1,900 to all police officers at all pay points for all ranks, with effect from 1 September 2022 (the “Recommendation”).
- The second impugned decision was that of the Secretary of State for the Home Department (the “Home Secretary”) in accepting the Recommendation, as recorded in a written ministerial statement (issued by the Home Secretary) dated 19 July 2022.
The core of the claim was that the Review Body was in breach of the public sector equality duty (the “PSED”) under section 149 of the Equality Act 2010 when it made the Recommendation. In addition, the Claimant contended that the Recommendation was unreasonable given that no party making representations supported the course ultimately taken by the Review Body. Further, the Claimant argued that there was a breach by the Home Secretary of the PSED in accepting the Recommendation, which was also unreasonable given that the Recommendation being accepted was unlawful.
In R (Police Superintendents’ Association) v The Police Remuneration Review Body & Anor, Fordham J held that the claim did not meet the requisite permission threshold test. In summary, Fordham J – whilst accepting that the Review Body was likely to be amenable to judicial review in this instance – did not agree that there was a breach of the PSED: the Review Body had considered the PSED in developing and making the Recommendation. For similar reasons, Fordham J did not accept that the Home Secretary had acted unlawfully: she had likewise discharged her PSED obligations. In respect of both impugned decisions, there was no viability in the Claimant’s assertion that the Review Body and the Home Secretary had acted unreasonably in respect of the Recommendation. Permission was therefore be refused, with the result that the claim did not proceed to a substantive trial.
In reaching this finding, Fordham J also made several obiter remarks about the duty of candour, and it is his discussion of the principles of the duty of candour which we consider further in the paragraphs below.
The 10 commandments? The 10 principles of the duty of candour
In paragraph 15 of his judgment, Fordham J – after having reviewed several authorities – identifies what he describes as the “principles” of the duty of candour. For each principle (he found 10), Fordham J attaches a label, and he adds, where appropriate, the supporting sources from the authorities or from the Administrative Court’s Judicial Review Guide, in its current 2022 edition. For completeness, paragraph 15 is set out in full below.
“(1) The ‘Standard Disclosure’ Principle. In judicial review, unlike most civil claims (CPR31), the parties are not generally required to give standard disclosure of documents (CPR PD54A §10.2), which means simply giving or offloading lots of documents is unnecessary and inappropriate (Hoareau §§19-20). (JR Guide 2022 §15.1.1; Gardner §22)
(2) The ‘Just Disposal’ Principle. In judicial review, the test for ordering disclosure of specific documents or categories of documents (CPR31.12(1)) is necessity to resolve the matter fairly and justly (Tweed §3), a test also governing requests in judicial review for further information (CPR18.1: see R (Bredenkamp) v SSFCA [2013] EWHC 2480 (Admin) §19) and cross-examination. (JR Guide 2022 §§7.6.2, 11.2.2; Gardner §§25, 27, 29 and 35)
(3) The ‘Candid Disclosure’ Principle. Judicial review is conducted with all cards face upwards on the table (Huddleston 945F), meaning full and fair disclosure of all ‘relevant material’ so the court can decide whether the public authority acted lawfully (Bancoult §192), based on an underlying principle that public authorities are engaged in a common enterprise with the court to fulfil the public interest in upholding the rule of law (Hoareau §20). (JR Guide 2022 §15.3.5, Gardner at §20; JM §90)
(4) The ‘Information-Too’ Principle. Candid disclosure also requires that relevant facts be identified in witness statement evidence, insofar as unapparent from disclosed contemporaneous documents (Belize §86), which means breach of the duty can lie in non-disclosure of a material document or the omission or obscuring in a witness statement of a fact or identified significance of a fact or document (Citizens UK §106(4)). (JR Guide 2022 §15.3.5; Gardner §21)
(5) The ‘Relevant Material’ Principle. Candid disclosure is required of (a) those materials reasonably required for the court to arrive at an accurate decision (Graham §18), (b) full and accurate explanations of all the facts relevant to the issue that the court must decide (Quark §50 Citizens UK §106(3); Hoareau §20) and (c) a true and comprehensive account of the way in which relevant decisions in the case were arrived at (Quark §50; Downes §21) including the underlying reasoning (CPR PD54A §10.1). (JR Guide 2022 §§15.3.1, 15.3.4; Gardner §20; JM §90)
(6) The ‘Non-Selectivity’ Principle. Candid disclosure must not be selective but must include the unwelcome along with the helpful (Taylor §60; Graham §18; Hoareau §21). (JR Guide 2022 §15.3.5)
(7) The ‘Best Evidence’ Principle. Documents should be produced, not gisted or a secondary account given, since the document is the best evidence of what it says: Tweed §4; Hoareau §24; National Association §§47, 49). (JR Guide 2022 §15.1.3; Gardner §21)
(8) The ‘Redaction’ Principle. Documents need not be disclosed in their entirety but can be redacted (Tweed §33) for public interest immunity, confidentiality, legal professional privilege or statutory restriction. (JR Guide 2022 §15.5.1)
(9) The ‘Permission-Stage’ Principle. The duty of candour applies prior to – and for – the Court’s consideration of whether to grant permission for judicial review, though what is required to discharge the duty at the substantive stage will be more extensive (Terra Services §§9, 14), and the limited nature of disclosed material could inform a decision to grant permission (R (Sky Blue Sports & Leisure Ltd) v Coventry City Council [2013] EWHC 3366 (Admin) [2014] ACD 48 §25). (JR Guide 2022 §15.3.2)
(10) The ‘Unpleaded-Grounds’ Principle. The duty of candour extends to documents and information which will assist the claimant’s case or may give rise to further grounds of challenge which might not otherwise occur to the claimant: De Smith’s Judicial Review (9th edition) at §16-026; Treasury Solicitor’s Guidance [2010] JR 177 at §1.2; R (K, A & B) v SSD [2014] EWHC 4343 (Admin) §11; after R v Barnsley Metropolitan Borough Council, ex p Hook [1976] 1 WLR 1052, 1058C-D (cited in Graham §18).”
Having identified these 10 principles, Fordham J went on to consider their application in these proceedings. In particular, the parties disputed whether the Home Secretary should have disclosed, in full, two ministerial submissions relating to the Recommendation. Instead, the Home Secretary had, in effect, provided the Claimant with extracts of the submissions. In adopting this approach, the Home Secretary relied on passages in two recent High Court decisions (R (Gardner) v SSHSC [2021] EWHC 2422 (Admin) and R (JM) v SSHD [2021] EWHC 2514 (Admin)) both of which appeared to suggest that there was no requirement, per se, pursuant to the duty of candour on a defendant Secretary of State in judicial review proceedings to disclose in full ministerial submissions so long as the substance of the relevant submission(s) had been disclosed.
In the proceedings, Fordham J held that the Home Secretary had erred in her approach to the duty of candour in failing to disclose the ministerial submissions in full relating to the challenged decision to adopt the flat-rate pay increase to £1,900 and so had misappreciated – albeit in good faith – the significance of what was said in Gardner and JM. Fordham J went on to find as follows:
“17. It is, in my judgment, wrong to conclude that it is or has become sufficient for public authority defendants in judicial review cases to communicate – whether in witness statements or grounds of defence – the ‘substance’ of undisclosed primary documents such as Ministerial Submissions, as an alternative to producing or exhibiting the primary documents themselves. The answer lies in the ‘Best Evidence’ Principle (§15(7) above) and the “good practice” identified in Tweed.”
…
“18. So, it needs to be appreciated that the observations in Gardner and JM were and are not judicial guidance endorsing the use of secondary evidence to communicate the “substance” of withheld documents. The principled “good practice” identified in Tweed provides the answer. If documents matter, they should be provided. If they matter prior to or at the permission stage, that is when they should be provided. Not gists. Nor summaries. Not descriptions of contents or features of the document. Not selected quotations. Instead, the documents themselves. This is proper candid disclosure.”
Fordham J stated further that “an appropriate safeguard” had been provided at the hearing in the form of an assurance given by counsel for the Home Secretary that, on reviewing the ministerial submissions, full disclosure of those submissions would not assist the Claimant or give rise to another ground of challenge. As such, it made no difference that the submissions had not been disclosed in full.
Analysis
In many respects, Fordham J’s judgment – and his description of the 10 principles of the duty of candour – is a helpful consolidation.
First, in bringing together the central authorities governing the parameters of the duty of candour, the judgment is useful as a point for future reference. Although the judgment relates to a permission decision (and so would not normally be citable), Fordham J directed that it be citable further to the Practice Direction (Citation of Authorities) [2001] 1 WLR 1001.
Second, Fordham J confirms (contrary to what appears to have been found in some judicial review judgments – see here for further on this) that the duty of candour applies at the pre-permission stage: see principle 9. Again, in this respect, the judgment is helpful.
Third, Fordham J explains, at least in outline form, the proper basis for applying redactions to disclosure: see principle 8. It is of note that ‘relevance’ is not, in Fordham J’s view, one of the bases for applying redactions to disclosure.
Finally, Fordham J corrects, by reference to his principles, a growing ‘misappreciation’ that the ‘substance’ of undisclosed primary documents, such as ministerial submissions, could be disclosed as an alternative to producing or exhibiting the primary documents themselves. This is an important, helpful corrective.
However, as helpful as it is, Fordham J’s analysis is unlikely to be the last word on this matter. Amongst other things, it is not, for example, clear to what extent the 10 principles engage with the growing trend in commercial judicial review litigation for what we have described ‘disclosure plus’, which is more akin to standard disclosure. Is that approach incorrect under the principles? By way of a further example, it is not clear in every instance precisely what the principles entail. For instance, principle 5 is made up of three sub-principles but only one of these (principle 5(a)) seem related to disclosure. What is the significance of the other two?
For the time being, Fordham J’s analysis is helpful concise source but, in the long run, what practitioners and litigants require are specific amendments to the Civil Procedure Rules (and the relevant Practice Directions) to clarify the scope of the duty of candour. This rule making process would have the benefit of consultation, and would be made in general terms, and thus would be unconfined to the straight jacket of the facts of an individual dispute.
As this rule making process may not be forthcoming for some time (or indeed potentially at all), parties should, as a starting point, consider Fordham J’s principles carefully before considering the application of the duty of candour in the proceedings concerning them. However, as noted, practitioners (and their clients) would still benefit from amendments to the CPR to ensure that there is an equivalent level of clarity as exists for standard disclosure in civil litigation.
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