[2025] UKUT 74 (AAC)

The appellant’s submissions seem to me to misunderstand the duty of candour. It applies in judicial review proceedings because the duty of standard disclosure does not apply in such proceedings. Where the duty applies, the public authority is under a duty to co-operate with the court, to put ‘cards on the table’ so that the court is apprised of all matters relevant to the issue before the court, whether they help or harm the public authority’s case: see, eg, R v Lancashire County Council, ex p Huddleston [1986] 2 All ER 941 at 945. It is up to the public authority in the first instance to comply with that duty, whether by providing witness statements and/or disclosure. Although the court will make an order if what is provided is judged insufficient fairly to dispose of the proceedings, the onus is on the public authority in the first instance to decide what material is relevant and the duty may be complied with by disclosing documents and not providing a witness statement, or (conversely) by providing a witness statement but no documents: cf R (Sustainable Development Capital LLP) v SSBEIS [2017] EWHC 771 (Admin) at [80]. As such, the appellant’s assumption that he would have been provided with more documents or explanations if the duty of candour applied than if it did not, is not necessarily correct.

The substance of the appellant’s complaint under this ground appears to be in part that he considers his prior application for disclosure should have been granted by Judge Neville at the case management stage. However, he did not appeal that decision and so that issue is not before me.

Beyond that, the appellant’s complaint is that the Tribunal at the final hearing did not order further disclosure or production of a witness statement by the Commissioner. However, the Tribunal has properly directed itself in relation to the appellant’s requests in those respects at [14] and [15] and has asked itself whether it was necessary to the fair disposal of the appeal to order further disclosure or production of witness statements. That was the proper approach regardless of whether the duty of candour applied or not. The Tribunal concluded that it was not necessary to the fair disposal of the appeal to make further orders.

There is accordingly no material error of law in the Tribunal’s approach and its case management decision to refuse further disclosure or statements was in my judgment one that was open to it to take in this case for the reasons it gave. Given that the duty of candour requires only that the public authority put before the court what is necessary for the fair disposal of the appeal, and the court does not normally question the public authority’s judgment in that regard without good cause, the First-tier Tribunal’s decision is in substance confirmation that if the duty of candour did apply, it had been complied with.

I add this: in general, in section 166 cases, given their limited scope, all that will be necessary for the fair disposal of the application is for the Commissioner to put before the Tribunal the documentary trail demonstrating the steps taken in dealing with any complaint or, if that does not tell the story, a short witness statement from the officer who dealt with the complaint may be appropriate. Since the Tribunal is not concerned with the merits of the complaint, what is required by way of disclosure or witness statement will in most cases be neither extensive or elaborate, and there is certainly no requirement for the Commissioner to put in evidence justifying or explaining the merits of the decision he took on the complaint.

In the light of those conclusions, I do not need to decide whether the Commissioner is subject to a duty of candour in relation to an application under section 166 as it can make no difference in this case. I do, however, observe that the duty of candour is not confined to judicial review proceedings. The duty of candour (whether in substance or in name) has been held to apply to other situations where a public body’s decisions are subject to challenge before a court or tribunal where the duty of standard disclosure does not apply. It is a duty that arises out of the public body’s duty to co-operate with the court or tribunal to achieve the right result in a case rather than seeking to ‘win at all costs’. See, for example, LS v Oxfordshire CC [2013] UKUT 135 (AAC), [2013] ELR 429 at [50]-[51] and Nottingham Forest FC v HMRC [2024] UKUT 145 (TCC) at [53]. It is therefore difficult to see what principled objection there could be to the duty of candour applying in section 166 applications.

Ground 3 is therefore dismissed.