Judicial review: Being candid about the duty of candour

First published in New Zealand Law Journal, May 2013.

A party to an application for judicial review has a duty to be candid with the Court and any other party.

This article outlines just what is required in such applications by way of candour and the consequences that can ensue should the duty be overlooked or ignored.

It also examines how the duty of candour interrelates with the traditionally restrictive approach of the Court to discovery, interrogatories and cross-examination in applications for judicial review and whether that restrictive attitude is, in fact, always appropriate.

The duty of candour

As Lord Walker said in the Privy Council's advice to Her Majesty in Belize Alliance of Conservation Non-Governmental Organs v Department of the Environment1, it is clear that "proceedings for judicial review should not be conducted in the same manner as hard-fought litigation".

In stating this, Lord Walker was directly referring to the duty of candour.

The duty requires a respondent public authority to cooperate and make candid disclosure of the relevant facts and, so far as it is not apparent from the contemporary documents which have been disclosed, the reasoning behind the decision challenged. Lord Walker also indicated that the duty can extend to non-public authority respondents who find themselves named as a party in a n application for judicial review. Even the a pplicant in judicial review proceedings owes the Court a duty of candour.  For example, in Cocks v Thanet District Council2, the Court stated that the applicant had to give "frank disclosure of all relevant facts".

Lord Walker's observation in the Belize case echoes the oft-quoted words of Sir John Donaldson MR in R v Lancashire County Council, ex p Huddleston, where the Master of the Rolls referred to judicial review as being "a process which falls to be conducted with all the cards face upwards on the table..."3.  That this should be so is all the more important because the vast majority of the cards will start in the public authority's hands.

The New Zealand Courts have also long recognised the existence of and, indeed, the need for, the duty of candour in judicial review proceedings.

For example, in New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries4 Cooke P stated that while the Courts recognised that they "should not trespass into the legitimate policy sphere of Ministers" in judicial review proceedings, the "constitutional corollary should be Ministerial candour with the Courts about their policy".

In the recent case of Henderson v The Privacy Commissioner5, Miller J said this in relation to the level of candour the Court will expect:

[108] [Counsel] also accepted that, as a general principle, decision-makers have a duty to disclose to the Court material relevant to a decision being judicially reviewed. I agree. The Court normally expects public bodies to disclose relevant material, which is one reason why discovery is not required as a matter of course under the Judicature Amendment Act, and an adverse inference may be drawn where a decision-maker has failed to do so.6

Put simply, a public authority whose decision is being challenged by judicial review must provide full and fair disclosure of relevant evidence and material. The obligation of disclosure has been described in these terms:

[The respondent] should set out fully what they did and why, so far as is necessary, fully and fairly to meet the challenge...7

In Banks v Secretary of State for the Environment, Food and Rural Affairs8 it was said that:

Frank disclosure of the decision making process does not mean referring to so much of the truth as assists the public body's case. It means presenting the whole truth including so much of the truth as assists the applicant for judicial review.

Given the importance of the duty of candour, it is probably helpful to remind counsel of what their duties of candour are when providing information to the Court and other parties in the context of an application for judicial review. Complying with the obligation will necessarily involve:

1. undertaking the steps necessary to investigate what material exists;
   
   
2. providing the applicant, if only informally in the first instance, documentary material and information that is relevant or that will help the applicant's case, or which gives rise to some different (and as yet non-relied upon) ground of challenge9; and
   
   
3. informing the Court of all known material facts.
   
   

The existence of the duty also means that:

1. the affidavits filed need to be drafted in clear and unambiguous language;
   
   
2. the language used in the affidavits should not deliberately or unintentionally obscure areas of central relevance;
   
   
3. there is no place in the affidavits filed for "spin"; and
   
   
4. public bodies and agencies must present their cases dispassionately and in the public interest.
   
   

The consequences of failure to comply with the duty

Lest it be thought that compliance with the duty of candour is for the naïve, the potential consequences of non-compliance should be considered. These can be serious and include:

• Adverse costs awards10;
  
  
• Court ordered disclosure;
  
  
• Exposure to cross-examination11;
  
  
• The drawing of adverse evidential inferences12;
  
  
• Significant reputational damage13 (including the possibility of findings of deliberate concealment14); and/or
  
  
• Contempt proceedings.
  
  

It has been said that a breach of the duty of candour strikes at the heart of a central tenet of public law, namely that the Court as guardian of the legal rights of the citizen should be able to rely on the integrity of the executive arm of government to "accurately, fairly and dispassionately explain its decisions and actions"15.

It is submitted that it is for this reason that the Court will often take steps, some of a quite punitive nature, should a party to an application for judicial review not be completely open and frank.

Interrelationship with the approach to discovery, interrogatories and cross-examination

The existence of the duty of candour and the Court's expectation that it will be complied with is one of the main reasons why discovery is not available as of right in applications for judicial review.16

It also explains, at least in part, why leave is required before a party in an application for judicial review may administer interrogatories or cross-examine a deponent of an affidavit adduced by an opposing party.

Judicial restraint in relation to discovery and these other tools for getting to the truth cannot be expected to survive if lack of candour was to become the norm in applications for judicial review.17 As one commentator18 has suggested, this is why such "anxious concern" is expressed by the Court where it transpires that the duty has not been complied with.

What should be the Court's approach to discovery, interrogatories and cross-examination?

So long as the Court is vigilant in upholding the parties and counsel to the standards of candour expected, the traditional restrictive approach to discovery, interrogatories and cross-examination in applications for judicial review will remain appropriate, subject always to the Court allowing these evidential tools when they are necessary to enable the application for review to be decided properly and fairly.19

However, should the parties and/or counsel fail to meet the required standards of candour in any particular application for judicial review, it is to be expected that the Court will be more open to granting applications for discovery, interrogatories and cross-examination. Were this not to be the response of the Court to non-compliance with the duty, it is difficult to see how the relevant application for judicial review could be determined fairly.

Conclusion

Compliance with the duty of candour can require significant care and thought. In the United Kingdom, the Treasury Solicitor has published guidance on discharging the duty of candour intended to help public servants to discharge their duties to assist the Court.20 It would perhaps be no bad thing for legal advisors to public authorities in New Zealand to produce similar documents for their clients. Indeed, the duty of candour probably requires them to do so, as it necessarily requires counsel to inform their clients of its existence and scope.

1 [2004] UKPC 6.

2 [1983] 2 AC 286 at 294G.

3 [1986] 2 A ll ER 941 at 945G.

4 [1988] 1 NZLR 544 (CA) at 554.

5 HC, Wellington, CIV-2009-485-1037, 29 April 2010.

6 As to the drawing of an adverse inference, see: Inder v Commissioner of Crown Lands HC, Christchurch, CIV-2009-409-1219, 28 May 2010 where Fogarty J said: "Where the Crown does produce evidence by the persons involved it is desirable for the evidence to be full and candid. If it is not, it invites an adverse inference, and can promote an application for cross-examination."

7 R v Lancashire County Council, ex p Huddleston [1986] 2 All ER 941 at 947E.

8 [2004] EWHC 1031.

9 This arguably requires the respondent to co-operate and comply with reasonable requests made for relevant information, including in pre-application correspondence. See, for example, Ford v GKR Construction Ltd [2000] 1 WLR 1397 at 1400H.

10 S v Secretary of State for the Home Department [2006] EWHC 1111 (Admin) where indemnity costs were awarded because the defendant had provided no grounds, evidence or explanation for the relevant decision.

11 Inder v Commissioner of Crown Lands, supra, footnote 7

12 Ibid.

13 See for example, Quark Fishing Ltd v Secretary of State for Foreign & Commonwealth Affairs [2002] EWCA Civ 1409 at [55] and [68].

14 See: In the matter of an application by Brenda Downes [2006] NIQB 77 at paragraph [26] where Girvan J said: "Since the letter was clearly carefully drafted having regard to the highly political nature of the issues I am forced to the conclusion that this was no mere drafting error."

15 Ibid. Girvan J found that there had been a significant lack of candour in circumstances where pre-action correspondence was "evasive, misleading, and in certain respects clearly wrong". On appeal ([2009] NICA 26), Her Majesty's Court of Appeal in Northern Ireland considered that "a rather more benevolent view" about the manner in which the material was disclosed was warranted but that was only after a painstaking independent investigation into all of the circumstances had been conducted by Peter Scott QC (see: paragraph [61] of the judgment).

16 See: Henderson v The Privacy Commissioner, supra, footnote 6. Others include: (a) the Court's desire to keep the process quick and simple; and (b) the fact that discovery is often irrelevant, as whether the decision under challenge is able to be successfully reviewed will often be able to be determined from the reasons given for it. This, of course, assumes that reasons have been given, which is not always so.

17 In the matter of an application by Brenda Downes, supra, footnote 14 at paragraph [31].

18 Michael Fordham QC in his excellent work Judicial Review Handbook (5 th Edition, Hart, 2008).

19 As to which, see: Stratford Racing Club Inc v Adlam [2008] NZAR 329 at [63] (cross-examination); Wellington International Airport Ltd v Air New Zealand Ltd (2001) 16 PRNZ 895 and Te Runanga O NgatiAwa v Attorney-General (discovery); and Zaoui v Greig [2005] 1 NZLR 105 (interrogatories). In the case of discovery, the real question will be whether there is a need for discovery to allow the Court to reach an effective and complete determination. It is submitted that the recent changes to the High Court Rules which have altered the scope of discovery required in proceedings will mean that disclosure is likely to be more focused than in the past – although there are many instances in the cases of quite limited discovery having been granted. Before granting leave to administer interrogatories the Court generally requires some proper factual issue requiring resolution; or some proper basis for doubting the accuracy or completeness of the evidential picture.

20 Guidance on Discharging the Duty of Candour and Disclosure in Judicial Review Proceedings, Treasury Solicitor's Department, London, January 2010.