Update | Judicial review: abuse of disclosure, formal disclosure

In a recent case in which the Court of Appeal was required to determine whether it was an abuse of process to bring a private law claim in circumstances where that challenge might have been included within an earlier judicial review, the court stated that: “The fact that in an ordinary action there will be disclosure will generally make no difference, as the Secretary of State is under a duty of candour in judicial review proceedings,” (BA v Secretary of State for the Home Department [2012] EWCA Civ 944 at [27e]).

In terms of disclosure, the principal difference between Part 7 claims and judicial review claims is that although CPR 31 applies to judicial review claims, PD 54 paragraph 12.1 provides that in judicial review “disclosure is not required unless the court orders otherwise”. This reflects the pre-CPR practice whereby orders for disclosure in judicial review were made only in exceptional cases.

This does not mean that parties to judicial review claims are permitted to keep to themselves relevant documents which may undermine their case. Instead, it means that the court’s starting point is that parties to judicial review claims can be trusted to disclose relevant documents of their own accord, in particular the public bodies whose decisions are under scrutiny.

The justification for this approach has three components: that orders for disclosure are unnecessary given the duty of candour; that disclosure of significant numbers of documents is unnecessary given the focus on the lawfulness of decisions; and cost.

The duty of candour

The duty of candour is not codified. Instead, it is shorthand for a principle which has been developed by the courts and which provides that defendants to judicial review claims should provide the court with “a true and comprehensive account of the way the relevant decisions in the case were arrived at” (Secretary of State for Foreign and Commonwealth Affairs v Quark Fishing Limited [2002] EWCA Civ 1409 at [50]).

It is not solely or specifically a duty to disclose documents. Instead, it is a duty to provide information. As such, it has in the past been capable of being satisfied through the provision of a witness statement provided by the public body decision-maker explaining how the decision was arrived at, with the court only requiring the disclosure of contemporaneous documents to determine if they corroborate or contradict that account when the claimant is able to satisfy the court that the defendant’s evidence may be inaccurate, inconsistent or incomplete (R v Secretary of State for Foreign and Commonwealth Affairs ex p World Development Movement [1995] 1 WLR 386 at [396C] to [397H]).

That this is to be achieved without a formal disclosure order is intended to reflect the principle that a defendant to a judicial review claim should not (and will not) be partisan and should (and will) assist the court in the same manner as the judge of an inferior court (R v Lancashire CC Ex p. Huddleston [1986] 2 All E.R. 941).

The problem is that there are now many examples of where public bodies have failed to adopt this non-partisan approach. Instead, public bodies and their legal representatives increasingly approach judicial review litigation on a partisan ?basis and rely on the failure of the court ?to routinely make orders for disclosure ?to avoid the timely disclosure of ?relevant documents.

At central government level the judgment of Charles J in R (Actis SA) v Secretary of State for Communities and Local Government [2007] EWHC 344 exemplifies how, even in a case without significant political ramifications (in that case the issue was how the thermal performance of thermal insulation should be calculated), government departments and their legal representatives can end up paying scant regard to the trusted position in which the Administrative Court places judicial review defendants. In this judgment, and after a point-by-point critique of the adequacy of the secretary of state’s evidence, Charles J described a “sorry state of affairs” in which there has been “a failure by the department and those advising it… to properly appreciate the seriousness and potentially far reaching effects of the allegations the department was facing and to deal with the issues… fully and with proper regard to the duty of candour… [these failings] should be reviewed at a very senior level within the department and the treasury solicitor.” (Schedule D at [40] to [41]).

That case, followed by further criticism of the “lamentable” approach to disclosure in R (Al-Sweady) v Secretary of State for Defence [2009] EWHC 1687, in which the court was misled into making a number of rulings on a false basis, led to the treasury solicitor’s department producing a guidance on discharging the duty of candour in January 2010. ?This guidance is available on the Treasury Solicitor’s website and has much to commend it; however, it still fails to offer the same level of clarity about whether a particular document needs to be disclosed as found in CPR 31.6 (where the duty of standard disclosure is explained).
In addition, there remains no formal mechanism throughout which claimants can be assured that the approach set out in the Guidance has been followed in a particular case.

Limited need for disclosure

The second justification for not making orders for disclosure is that because judicial reviews are not concerned with the merits of a decision but only with identifying errors of law, disclosure is unnecessary because the only document that matters ?is the document recording the decision under challenge.

That may still hold true for challenges of judicial decisions, where the decision which is the subject of the judicial review claim can in general be presumed to have been preceded by a transparent decision-making process.
However, for other types of decisions there is an increasing acceptance that without disclosure of the documentation which preceded the decision it is not possible to know which considerations have and have not been factored into the decision-making process, and without knowing this it is impossible to assess the lawfulness of the decision.

Further, for claims which include Human Right Act grounds of challenge and in which the court must review for itself the proportionality of the decision, it is now accepted that there must be disclosure of the main documents underlying the decision and if these documents are not forthcoming then an order for their disclosure is likely (Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650 at [7]).

In addition, the Administrative Court has held that where the determination of a judicial review claim requires the court to resolve substantial disputes of fact, then the approach to disclosure should mirror that which is adopted for determining Part 7 claims (R (Hussein) v SSHD [2009] EWHC 2506 at [7]; a judicial review challenge to the lawfulness of immigration detention in which a claim for damages for false imprisonment was also pleaded).

Costs and proportionality

Increasingly the real battleground in relation to disclosure orders in judicial review is whether a formal disclosure procedure would be a proportionate response to concerns about the partisan approach adopted by some public bodies when defending judicial review claims.

Those who argue for the maintenance of the status quo are supported by Lord Justice Jackson’s preliminary report on civil litigation costs, in which at chapter 35 he explained that: “2.3… The fact that ordinarily there is no disclosure is the overriding feature in relation to costs. The parties simply put forward the documents upon which they rely, subject to any direction by the court that some specific document or group of documents should be disclosed. During the eight years that I sat as an Administrative Court judge, I was not aware of the absence of disclosure becoming a source of injustice. Nor (so far as I can recollect) did counsel ever suggest that this was the case.”

However, there is a growing body of evidence that injustice is resulting from non-disclosure of relevant documents in the absence of a formal disclosure process, including within a not insignificant number of reported judgments. It is also important to remember that injustice resulting from non-disclosure will not always be readily apparent.

Concerns about the costs of a formal disclosure process also need to be considered against the costs of current practice whereby claimants will send countless letters trying to prise relevant documents from public bodies, relying both on the duty of candour and also the Freedom of Information Act 2000 and Data Protection Act 1998, in response to which there is often a slow trickle of disclosure throughout the claim which then turns into a flood on the eve of the final hearing.

In those circumstances a formal, if streamlined, disclosure process for judicial review – modelled perhaps on new rule CPR 31 as it will apply to non-PI multi ?track claims post April 2013 – may not only be more just, but also significantly more cost effective.