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Judicial review, interested parties, and the duty of candour (in under 500 words)

23/10/2018
Although in applications for judicial review most of the information and material which falls to be disclosed pursuant to the duty of candour will be in the hands of the Defendant public authority,

Although in applications for judicial review most of the information and material which falls to be disclosed pursuant to the duty of candour will be in the hands of the Defendant public authority, the Defendant is not the only party subject to the duty. While there is a small body of authority regarding the Claimant's duty of candour, only one case has sought to address the extent to which it encompasses interested parties ("IP"/"IPs").

In Belize Alliance of Conservation NGOs v Department of the Environment [2004] UKPC 6 the Privy Council considered whether the IP (a developer called the Belize Electricity Company Limited ("BECOL")) was subject to the duty of candour.  The Claimant ('BACONGO') argued before the Privy Council that the Defendant's ('DoE') plan to build a hydro-electric dam on the Macal River in partnership with BECOL was unlawful. BACONGO appealed on the basis that the environmental impact assessment ("EIA") which the DoE was required to carry out was so deficient that it could not reasonably form the basis of the decision to approve the plan. Throughout the whole process, DoE and BECOL worked closely together.

Although the Committee dismissed BACONGO's appeal, Lord Walker concluded that:

"Although BECOL 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 these parties [BECOL and DoE]. They are in effect partners in an important public works project […] BECOL was also, in my opinion, under a duty to make candid disclosure to the court."

The judgment does not expressly address whether an interested party is subject to an at large duty of candour or whether the operative factor is the fact that the IP shares a commonality of interest/partnership with one of the parties.

Nevertheless, the public interest nature of judicial review, and the expectation that the proceedings are conducted with 'all cards face up on the table' militates strongly in favour of the suggestion that the duty is not circumscribed based on the status of a given party. It is difficult to think of any principled reason why a party with a distinct interest in the outcome of a case and who may have material relevant to its adjudication should be able not to disclose it.  Certainly, in a commercial case in which I was recently involved, two Lords Justice of Appeal strongly 'encouraged' an IP's counsel to think carefully about her suggestion that her client was not subject to the duty in respect of material which was potentially highly probative (and which the IP ultimately voluntarily disclosed).  Such a suggestion encapsulates the sort of triumph of form over substance that, happily, the courts have progressively abandoned.

Co-authored by David Northfield and Lauren Howes (trainee)

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