Distinct from disclosure in ordinary civil litigation, in judicial review proceedings the duty of candour places a weighty obligation on parties to assist the court with a full and accurate explanation of the facts to the issue (Secretary of State for Foreign and Commonwealth Affairs v Quark Fishing Ltd [2002] EWCA Civ 1409, para 50). The duty of candour is considered sufficient for the vast majority of judicial review cases where the facts are (on the whole) agreed and the court's focus is on the legality of the defendant public body's decision.
There are, of course, exceptions and the court can order specific disclosure when required. Nevertheless, even in such exceptional cases, orders should not be "automatic" (Lord Bingham in Tweed v PCNI [2006] UKHL 53 at para 3) and the court should guard against "fishing expeditions" (Lord Brown at para 56).
Against the background of case law on the issue (for example R (Al Sweady) v Secretary of State for Defence [2009] EWHC 2387), the Lord Chief Justice has published a discussion paper, prepared by Mr Justice Cranston and Mr Justice Lewis, to consider whether any amendments are required. The paper makes the following findings and recommendations:
- Reflect the case law position
The authors found that there would be merit in clarifying the defendant's duty of candour by amending paragraph 12 of CPR Practice Direction 54A – Judicial Review ("PD 54A") to reflect existing case law:
12.1 Disclosure is not required unless the court orders otherwise.
12.2 A defendant should, in its detailed grounds or evidence, identify any relevant facts, and the reasoning, underlying the measures in respect of which permission to apply for judicial review has been granted [proposed amendments highlighted].
- Procedure to apply for specific disclosure.
While the Discussion Paper recognises that there are exceptional cases that may require specific disclosure, to attempt to encompass such cases within the duty of candour risked a convoluted principle and could have a disproportionate impact on disclosure obligations for the majority of judicial review proceedings.
Instead the Discussion Paper recommends that PD 54A sets out a procedure through which a claimant, in the minority of cases where the general approach may be inadequate, can seek a specific order for disclosure. The authors foresaw that such a procedure would be after the court had granted permission and would follow service of the defendant's detailed grounds of evidence. It was considered that possible disclosure requests prior to the permission stage were so unusual that it would be disproportionate to amend the CPR or Practice Direction in that respect.
The authors submit that this proposed procedure would address a need and that the court's oversight of these applications would safeguard against excessive or routine use by claimants.
- Acknowledgement of Service
There is no obligation on a defendant to file an acknowledgement of service or summary grounds (albeit the defendant then requires the court's leave to participate in an oral permission hearing). However, many defendants do and in those cases, the Discussion Paper proposes that PD 54A should require the summary grounds of resistance to identify succinctly any relevant facts and provide a brief summary of reasoning, underlying the measures in respect of which permission to apply for judicial review is sought (unless the defendant can provide reasons why the application for permission can be determined without that information).
- The Claimant's duty of candour.
In order to highlight the importance of the principle and to balance out the obligations on the defendant, the Paper also proposes the inclusion of a specific reference to the claimant's duty of candour in PD 54A.
The proposed new provisions would notify claimants that: they are under a duty of candour; they must make proper and necessary inquiries before seeking permission to ensure all relevant facts are known; they must refer to any relevant statutory provision which could exclude the court's jurisdiction over their claim or application; and that they must state any alternative appeal mechanism available to them.
Comments on the Discussion Paper's recommendations must be submitted by 21 July 2016 to dutyofcandour@judiciary.gsi.gov.uk or by post to Duty of Candour Consultation, Master of the Rolls’ Private Office, Royal Courts of Justice, Strand, London WC2A 2LL.