UT/2024/000060 - [2024] UKUT 00315 (TCC)

Mr Firth rightly points out, consistent with the explanation given R v Secretary of State for the Home Department ex p Fayed [1998] 1 WLR 763 at 775 C, that the acknowledged exceptionality of disclosure in judicial review proceedings arises because of the duty of candour on public authority defendants. Neither party disputes the statement of the core principles underpinning the circumstances in which a court or tribunal will grant disclosure in judicial proceedings or the content of the duty of candour (although as will be seen there is a difference of view on the precise interpretation of those principles and their application here).

The test for disclosure is whether in the given case, “disclosure appears to be necessary in order to resolve the matter fairly and justly” Tweed v Northern Ireland Parades Commission [2007] (HL(NI)) 1 AC 650 at [3].

The duty of candour as explained by the Court of Appeal in Secretary of State for Foreign and Commonwealth Affairs v Quark Fishing Ltd [2002] EWCA Civ 1409 (at [50]) is:

“… a very high duty on public authority respondents… to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide.”

In R (oao IAB) v Secretary of State for the Home Department [2023] EWHC 2930 (Admin)case the Administrative Court (whose judgment was subsequently upheld by the Court of Appeal noted at [12]:

“…it is well-established that the duty of candour is an obligation of explanation rather than simply an obligation of disclosure. The substance of the obligation is well put by Sir Clive Lewis in his “Judicial Remedies in Public Law” 6th edition 2021, at paragraph 9-098. The obligation exists to ensure that a defendant explains, whether by witness statements, or the provision of documents, or a combination of both, the reasoning process underlying the decision under challenge.”

The duty is expressed in the relevant procedural rules and guidance applicable to judicial review proceedings in the Administrative Court, (which will have applied when the current claim proceeded there, and in relation to which I can see no obvious reason to suppose would not serve at least as guidance in the proceedings before the tribunal) are:

CPR 54.16 on Evidence provides:

“11.1

In accordance with the duty of candour, the defendant should, in its Detailed Grounds or evidence, identify any relevant facts, and the reasoning, underlying the measure in respect of which permission to apply for judicial review has been granted. [The duty of candour is similarly described in the Administrative Court Guide (at 15.3.4)].

11.2

Disclosure is not required unless the court orders otherwise.”

In R (Refinitiv Ltd and others) v HMRC (published as an annex to decision [2023] UKUT 187(TCC), the Upper Tribunal suggested, upon analysis of the various authorities it was referred to there, that the particular extent of the duty of candour, and the necessity in any given case for disclosure would be “sensitive to the particular public law issues raised”.