A feature of judicial review procedure is that disclosure of documents is not required. The procedural rules make no provision for disclosure (indeed, they state that parties are not required to provide disclosure). Despite this, disclosure is increasingly provided in judicial review litigation as a matter of course. This is welcome. Appropriately focused disclosure facilitates rather than impedes efficient judicial review proceedings. It ensures judges and claimants are properly sighted on the decision-making process and it avoids the dangers of spin and omission in the summarisation of documents. But the approach taken by public bodies varies markedly, depending on their interpretation of the requirements of the common law “duty of candour”. In the absence of any rules governing the process, defendants sometimes do not disclose important documents while other cases get bogged-down in elaborate search and disclosure exercises.
We should abandon the out-dated attachment to the idea that disclosure is not appropriate in judicial review proceedings and—as in other areas of civil litigation—we should have procedural rules setting out search and disclosure principles. The duty of candour should return to its role as a principle that ensures that the court receives a full and accurate description of the decision-making process and as an overriding duty of transparency.
Disclosure in judicial review
Part 54 of the Civil Procedure Rules makes no provision for disclosure. The practice direction, moreover, states that the duty of candour requires that a defendant in its evidence or detailed grounds identifies any relevant facts but that, “disclosure is not required unless the court orders otherwise.” The principle that disclosure is not required reflects the fact that there will not be a trial of fact in judicial review proceedings. Witnesses will not be called and cross-examined by reference to contemporaneous documents and the court will, broadly speaking, accept the defendant’s written evidence as an accurate account of how the decision was reached. Therefore, what is critical is that the defendant’s evidence is fulsome and candid.
In practice, however, this is really only a starting point. In litigation generally, disclosure is often the key that unlocks justice. Judicial review is no exception. Take the famous Anisminic litigation. The Foreign Compensation Commission’s decision was described by Brown J at first instance as “entirely ‘sphynx like’” and an explanatory letter “only ‘spoke’ with considerable reticence” ([1969] 2 AC 223, 230). The Commission had however disclosed a minute of decision—a disclosure made in support of its own case—which was found to disclose the fateful of error of law. Examples of cases turning on documents disclosed in the course of proceedings are legion. And today, judicial review claims in which a defendant has not disclosed documents are rare. The type of documentation disclosed ranges widely. It can, for example, be a claimant’s immigration file, a Ministerial Submission where a decision has been taken personally by a Minister, or email communications between officials and third parties leading up to the decision. In complex judicial reviews this can include a vast amount of material obtained through extensive searches. In the recent Bulb case, Singh LJ and Foxton J said the volume of disclosure “would not have been out-of-place in a Commercial Court trial”.
Disclosure is provided pursuant to what a party considers to be its duty of candour, or it is provided voluntarily or to avoid or compromise specific disclosure applications (which although still rare in judicial review are increasingly used). A particularly high profile example of where the failure to disclose documents breached the duty of candour is Bancoult, in which the Government’s failure to identify relevant documents during proceedings concerning the expulsion of inhabitants of the British Indian Ocean Territory, led to an application to re-open a judgment of the House of Lords.
However, I suggest three connected reasons why the provision of disclosure in judicial should be subject to dedicated rules rather than driven by the duty of candour.
(1) Candour is not a disclosure principle
First, the duty of candour is not a principle that is directed to the disclosure of documents. On the contrary, the duty of candour is a principle that the courts developed because of the absence of disclosure in judicial review and the absence of any trial at which the facts will be established. The duty is concerned with providing information to ensure that the court makes its decision on a fully informed factual basis. In a famous passage in Quark Fishing, Laws LJ stated: “there is no duty of general disclosure in judicial review proceedings. However there is—of course—a very high duty on public authority respondents, not least central government, to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide.” (§50) In the recent Divisional Court case of HM, Edis LJ stated that the duty of candour, “enables the court to adjudicate on issues involving the state without deciding facts or engaging in disclosure processes.” (§15) The duty is characteristically complied with in witness statements filed by the parties or in their written grounds.
One of the problems with viewing the duty of candour as a principle that either requires disclosure or is satisfied by giving disclosure is that it results in documents being disclosed without their relevance being explained and addressed in evidence.
Thus, in the Napier Barracks case—a challenge to housing asylum-seekers in a disused army barracks during the pandemic—Linden J noted that the Home Office had thought that the disclosure of a large amount of documentation fulfilled its duty of candour. But the evidence had not “explained and put into context” the documentation and the Judge thus drew adverse inferences against the Home Office (§29).
A second example is illuminating also as an example of the duty of candour’s application to claimants. In Khan the claimant challenged a refusal to grant him indefinite leave to remain based on 14 years continuous residence. The issue before the Court of Appeal was whether the Secretary of State had wrongly excluded certain types of evidence, such as letters from friends. Amongst the documents disclosed and filed at court was an old work permit application in which the claimant had referred to working abroad for four years. The document did not speak to the issue of law before the court but the evidence was inconsistent with the claimant’s evidence that he had been in the country for 14 years continuously and suggested his application for leave was unmeritorious. The court said it was not sufficient that the document had been disclosed and was before the court: the claimant should have drawn the significance of the document to the permission judge’s attention and addressed it in a witness statement so that the judge had “the full picture”.
Disclosure is therefore generally neither necessary to comply with the duty of candour nor is it sufficient. This is because it is not a principle directed at disclosure of documentation but at the provision of information. Moreover, the absence of any rules requiring the disclosure of documents in judicial review proceedings and the reliance on the duty of candour to generate disclosure, results in the duty of candour’s character being obscured and devalued. If the provision of documents is thought to be required by the duty of candour then it is hardly surprising that parties consider that the provision of documents also satisfies it.
(2) Useful disclosure is not the same as compliance with the duty of candour
Linked to the first point is that the efficient and effective resolution of judicial review claims requires disclosure of documents beyond what is required by the duty of candour.
As I have explained, the duty of candour does not generally require the disclosure of documents. In Tweed Lord Bingham stated that underlying documents are the “best evidence” and that it is “good practice” for defendants to disclose them, but they are not required to do so (§4). Similarly in National Association of Health Stores Sedley LJ stated that the documents provided to a minister on which his decision was taken constituted the best evidence of the decision and the court would have required them to have been disclosed had they not been volunteered. He pointed out that what the court makes of a document is often not what public officials make of it (§49).
The Administrative Court Guide suggests that it may “in practice” be “difficult to comply” with the duty of candour where “the precise terms of a document are relevant” to an issue in the case (§15.1.3). However, documents recording the reasons for a decision, or which were placed before the decision-maker, should be disclosed whether or not their “precise terms” are relevant, because disclosure of the documents themselves best assists the court.
In practice, as I have said, it is very common for such documents to be disclosed, although practice varies not only from one public body to another but also between Government departments. Disclosure of such documents facilitates effective judicial review. As well as assisting judges, it enables claimants to formulate their claim based on a full picture and to plead accurately and precisely to the facts. Such documents should be disclosed even if a defendant could provide an accurate account of the decision-making process sufficient to comply with the duty of candour. Rules of disclosure are appropriate to capture such “best practice” and ensure the court has the “best evidence” on which to decide judicial review claims. The provision of such documents is not onerous: they need to be collated and consulted in drafting grounds of resistance (and, as I have said, such documents are provided in many cases already). There is then no obvious reason why a rule requiring the key documents to be disclosed is not contained in the procedural rules.
To be clear, I am far from suggesting that every document generated by the decision-making process must be disclosed. My point is that what is currently regarded as voluntary “best practice” disclosure goes beyond what the duty of candour requires but should be regulated by procedural rules. This would be in the interests of both parties and the wider interests of justice.
(3) The duty of candour is imprecise and insufficiently prescriptive
Thirdly, the duty of candour is insufficiently precise and prescriptive. It provides no clear description of the documents to be disclosed and relies on generalisations such as “relevant” now considered too broad and vague in other areas of civil litigation to regulate disclosure. It is silent as to the extent or form of searches that should be conducted or what type of documents should be disclosed at which stage of a claim. This lack of clarity does not always give rise to problems. But it can do. It can be very difficult for lawyers advising parties to know what is required and it can lead to a tendency for them to err on the side of caution and advise that extensive searches and document reviews should be undertaken. On the other hand, the regular diet of candour failings being dealt with by the courts suggests that the absence of clear prescriptive rules also has the opposite tendency—to result in documents not being properly identified, reviewed and disclosed.
Other areas of civil litigation are regulated by sensible rules that set out when documents should be disclosed and the extent of searches to be conducted. The practice direction for the Business and Property Courts, for instance, does not require standard disclosure but requires key documents to be disclosed when statements of case are filed (see PD 57AD). There are also several disclosure models for focused searches and limited disclosure depending on the requirements of the claim. The rules prescribe the duties of the parties and the duties of their legal advisers, including at the pre-action stage. In 2022, following a three year pilot, these rules were put on a permanent basis. Judicial review does not require such a detailed scheme, but the example shows how tailored rules can be devised which ensure that the requirements for disclosure are limited, focused and clear.
The duty of candour turned inside out
These problems with using the duty of candour as the vehicle for providing disclosure in judicial review are apparent from a recent judgment of Fordham J in the Police Superintendents’ Association case. Fordham J synthesised the case law on disclosure into ten principles (§15). Amongst these is what Fordham J termed the “Candid Disclosure Principle”, by which, he said, parties are required to give “full and fair disclosure of all relevant material”. The difficulty with this is that if parties must provide full disclosure of all relevant material this goes beyond the disclosure required in commercial cases and beyond even the provision of standard disclosure under CPR 31.6 (which is no longer based on mere “relevance”: see Shah §22). That is difficult to square with the basic principle that disclosure is not required in judicial review and suggests that the principle no longer holds good. Notably, however, in Hoareau the Divisional Court had said that references in case law to a duty to “make full and fair disclosure” should be understood as a reference to disclosure of information, not documents, as the comments originate from the time when modern disclosure was called “discovery” (§15).
Fordham J also identified two other principles of particular note: the “Relevant Material Principle”, which he said requires, amongst other things, all material reasonably required for an accurate decision to be disclosed and a “‘Best Evidence’ Principle” which requires documents to be disclosed rather than described—a principle Fordham J said was part of “proper candid disclosure” (§18). The Relevant Material Principle gives rise to the same difficulty as the Candid Disclosure Principle. The Best Evidence Principle relies on the elasticity of the candour principle to encompass “best practice”, doing the work of a disclosure rule.
Fordham J also identified the “Information-Too Principle” which, he said, requires relevant information to be supplied “insofar as unapparent from disclosed contemporaneous documents”. This suggests that the provision of information is secondary to a duty of disclosure of documents.
Taken together, the effect of these various principles completes the process of turning the duty of candour inside-out: a duty that was originally concerned with the provision of information to compensate for the absence of disclosure is turned into a wide-ranging duty of disclosure with additional information required insofar as it cannot be gleaned from the documents.
Whilst Fordham J’s approach developed the case law in certain respects, it was nonetheless primarily a synthesis of statements made by other judges in previous cases. Fordham J carefully identified the authority or dicta for each of his propositions. The judgment is thus principally of interest for present purposes because (a) it reveals the degree of uncertainty generated by the accumulation of judicial reasoning on the relationship between the duty of candour and disclosure and (b) it reinforces my argument that disclosure has become an important feature of modern judicial review that deserves to be regulated by procedural rules.
Conclusion
Disclosure in judicial review is important and, in moderation, efficient. It is, moreover, a reality of modern judicial review. Relying on the duty of candour as the exclusive basis for the provision of disclosure in judicial review is undesirable: it distorts the duty of candour, it does not reflect what is actually required for efficient judicial review and it is insufficiently clear and prescriptive as to the requirements of search and disclosure at different stages of proceedings. There is much to be said for a disclosure pilot procedure for judicial review.
I am grateful to Ben Jaffey KC, Thomas de la Mare KC and Tim Buley KC for comments. The opinions and any errors are my own.
Tom Hickman KC, Professor of Public Law UCL, barrister at Blackstone Chambers
(Suggested citation: T. Hickman, ‘Candour Inside-Out: Disclosure in Judicial Review’, U.K. Const. L. Blog (16th October 2023) (available at https://ukconstitutionallaw.org/))