What is the duty of candour?

Regular readers of Free Movement will be aware of the recent judgment finding serious breaches of the duty of candour by the Home Office in the mobile phone seizures case. Jed Pennington has discussed the judgment in a previous post. But, what is the duty of candour?

The duty of candour requires parties to a case to ensure that all relevant information and all material facts are disclosed, even where it includes information that undermines their case. This post will provide a whistle-stop tour of the duty of candour in judicial review, specifically in the context of immigration law.

The duty of candour in judicial review

In the context of judicial review, the duty of candour has a specific meaning. Unlike other types of civil litigation, judicial review does not operate using the normal rules of disclosure of evidence. Rather, both parties – often an individual and the Home Office – are subject to the duty of candour.  It is a “self-policing” duty and parties are expected to provide a true explanation of all relevant facts relating to the decision being challenged.

A duty of candour can be owed in other legal contexts. For example, an individual seeking to enter the United Kingdom owes a positive duty of candour on all material facts (see Zamir v Secretary of State for the Home Department, [1980] UKHL 14). Not all immigration cases will be judicial reviews. Many immigration cases in the courts and tribunals are statutory appeals, to which there are specific rules of disclosure (and where the duty of candour in judicial review does not apply).

To whom does it apply?

The duty applies to both claimants and defendants; that is the individual or organisation challenging a decision and the public authority that made the decision. It also applies to the interested parties.

The exact contours of the duty are complex and differ depending on the type of challenge. I will not attempt to set out a comprehensive account of how it can apply. Instead, I will set out some notable aspects of how the duty operates in immigration judicial review.

Claimant’s duty of candour

The Administrative Court Judicial Review Guide (“Admin Court Guide”) explains that:

“a claimant is under a duty to make full disclosure to the Court of material facts and known impediments to the claim (e.g. alternative remedy, delay, adverse case law, statutory ouster, change of circumstances). This duty is a continuing one: it applies throughout the judicial review procedure” (para 15.2.1). This includes a duty to present information in a “fair and even-handed manner… in a way which is not designed simply to promote his own case.”

The standard advice that lawyers give their clients is that “it is very important that you do not destroy any evidence whether you consider it helpful or unhelpful to your case”. This advice is equally important in the context of judicial review as it is to other types of litigation.

The Hamid jurisdiction

The duty of candour applies most strongly to claimants in urgent applications made without notice to the defendant. A common example is a challenge to impending deportation. The widely-known case of R (Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin), was termed a “meritless application” made to challenge the claimant’s removal. The Divisional Court said:

“If any firm fails to provide the information required on the form and in particular explain the reasons for urgency, the time at which the need for immediate consideration was first appreciated and the efforts made to notify the defendant, the court will require the attendance in open court of the solicitor from the firm who was responsible, together with his senior partner. It will list not only the name of the case but the firm concerned. Non-compliance cannot be allowed to continue.”

And so, what is now known as the Hamid jurisdiction came to be. It applies equally to judicial reviews in the Administrative Court and Upper Tribunal. You can read more about Hamid hearings here.

In practice, practitioners are most anxious about compliance with the duty of candour in these urgent applications. When making their application, they must highlight any gaps in their knowledge and all arguments against the application, including any weaknesses in the case such as an individual’s prior convictions. The application should also ensure facts are supported by verifiable evidence (including explanations for why the facts are believed to be true, where no evidence is available), and ensure that all pre-action correspondence with the defendant is disclosed.

A continuing duty

Urgent applications aside, the duty of candour is a continuing duty. It requires the claimant to update the defendant (and the court, where appropriate) of any material change in circumstances. For example, if someone challenging ongoing immigration detention has been released after the claim has been issued, there is a duty to ensure such information is provided to the courts without delay.

An important corollary of the duty of candour is the duty of cooperation with the court. It requires claimants to continually reassess the viability of their claims as the claim progresses. This is particularly important when the defendant provides new evidence and/or a substantial response (the acknowledgement of service, summary grounds of defence, and detailed grounds of defence).

Defendant’s duty of candour

The Admin Court Guide explains that there is “a particular obligation on solicitors and barristers acting for public authorities to ensure that it is fulfilled”, due to the “common enterprise… [which public authorities are engaged in] with the Court to fulfil the public interest in upholding the rule of law”.

They must assist the Court with full and accurate explanations of all relevant facts on which the Court must make a decision. The duty includes:

“15.3.5.1 the process of preparing statements of case and evidence must be conducted “with all the cards face upwards on the table”; public authorities must not be selective in their disclosure;

15.3.5.2 pleadings and evidence must be drafted in clear, unambiguous language, must not deliberately or unintentionally obscure areas of central relevance and must not be ambiguous or economical with the truth or contain “spin”; and

15.3.5.3 pleadings and evidence must not mislead by omission, for example by non-disclosure of a material document or fact or by failing to identify the significance of a document or fact.”

Properly applied, the duty imposes a serious obligation on defendants. The question then arises: how often, in the context of immigration judicial reviews, do defendants (principally the Home Office) breach their duty of candour?

How to assess the frequency of breaches of duty of candour

Unfortunately, this is a question to which no straightforward answer can be given. It is difficult to get an accurate picture of how often breaches occur from court judgments as they do not often identify issues relating to candour that have occurred during litigation. For example, not every application for specific disclosure relying on an alleged breach of the duty of candour will result in a published judgment.

The Treasury Solicitor Guidance on Discharging the Duty of Candour provides the following list of consequences for a breach of the duty:

1. the material, if subsequently produced, may not be relied on without the permission of the court;
2. a formal order for disclosure;
3. the drawing of adverse evidential inferences;
4. an adverse costs order;
5. proceedings for contempt of court;
6. reputational damage;
7. allegations of deliberate concealment affecting the outcome of the litigation

One might think, then, that a court judgment identifying such a consequence would be a useful indicator of a breach of the duty of candour. Points five and six (the latter of which contains no means of proper identification in a court judgment) aside, anecdotal observations of case law indicate that these sanctions occur not infrequently.

Unclear scope of the duty

The parameters of the duty are not entirely clear. Defendant lawyers generally feel comfortable when advising their public authority clients on compliance with the duty, and indeed appreciate the importance of such compliance. But this does not detract from the point in the recent Independent Review of Administrative Law (“IRAL”) that “there is a need to clarify the scope of the duty of candour”.

The most striking example of ambiguity is seen in the conclusions of the IRAL on the timing of the duty and the judgment in the mobile phone seizures case. The IRAL report said: “it is hard to see how the duty can arise before a court is engaged in considering a claim for judicial review”. In contrast, the court’s judgment adopted the stance in the Treasury Solicitor guidance which provides that the duty arises before the issue of proceedings, meaning that it also applies to pre-action correspondence.

This is not an exercise in pedantry: the difference has a very real impact on immigration judicial review litigation. The court’s statement means that public authorities have an obligation to “explain the facts on which the claimant’s proposed claim is based” once a pre-action letter has been sent. In the context of immigration judicial reviews, this can include documents like medical records and internal decision proformas, some of which would not otherwise be readily accessible.

Whilst claimant lawyers routinely request disclosure of relevant documents in pre-action letters, it is advisable to place explicit reliance on the duty of candour when doing so. It is also advisable to draw a defendant’s attention to the cost consequences of non-compliance with the duty. Where a claim is issued and the public authority only discloses a relevant document at that stage, which, if disclosed earlier, would have meant the claim would not have been issued, the claimant might fairly argue that the usual rule that “costs follow the event” should not apply if they then have to withdraw their claim.

The sanction for breach of the duty of candour – an unequal footing?

The astute reader will note that the Treasury Solicitor guidance does not, in its list of possible consequences of a breach of the duty, include “referral to the Hamid judge”, or “show cause why there should not be a referral to the relevant professional regulator”. Both of these are familiar concerns of claimant lawyers.

In the mobile phone seizure case, some may consider that the further hearing convened by the court to deal with the breach of the duty (alongside costs and other consequentials) was in effect similar to a Hamid hearing. However, there are striking differences.

The court was at pains to highlight its view that the breach was a “collective rather than an individual failure”, on the basis that “everyone” (including multiple Government Legal Department lawyers and counsel) was “involved”. The Court stressed its view that everything was done in “good faith”. There was therefore no prospect of professional sanction against any lawyer involved

This stance is quite striking when contrasted against how seriously breaches are held against claimant lawyers under the Hamid jurisdiction. There is a suggestion that the collective nature of the failure is a factor lessening the seriousness of the breach. And also that the presumption of good faith employed, which arises from the Court “approach[ing] this issue on the basis that these events occurred because everyone involved was under great pressure in dealing with a crisis of mass migration into the United Kingdom”. This will be a sting to read for the claimant lawyers who operate under the fear of disciplinary sanction and possible risk to their firm’s legal aid contract when preparing difficult urgent applications.

One might rationalise these seemingly different standards by looking at the operational context in which the Home Office is conducting its work; namely, the oft-cited maintenance of effective immigration controls in the public interest. The courts have accepted that it is an important aspect of the public interest to allow the Home Office to pursue its policies and to “give effect to immigration decisions until such time it is determined [they are] acting unlawfully”. More generally, the seemingly higher standards which claimant lawyers are held to can be justified on the basis that the courts do not want to be seen to be interfering with legitimate political choices and decisions made by officials operating with a democratic mandate (to varying degrees).

This is not to say that defendant lawyers will never be at risk of being subject to the Hamid jurisdiction. There is nothing in principle to stop this from happening. However, the proceedings and the judgment in the mobile phone seizure case represent somewhat of a high-water mark for judicial recognition of serious breaches of the duty of candour by a defendant.

Looking ahead

Some of the most significant contemporary topics in public law (which undoubtedly impact immigration law) have close links with the duty of candour. Disputes over government transparency are epitomised in the legal sphere, for example by the Good Law Project’s ongoing challenge to the use of private communication systems for Government business. There is also an increased prevalence of complex disclosure issues arising in judicial review litigation, such as the satellite litigation relating to disclosure in the challenge of the Rwanda policy. The IRAL Review has also highlighted that the scope of the duty remains unclear. It would therefore be wise to keep an eye on developments of the duty of candour in the case law.

A disclaimer:  I am on a team working on an empirical study of the duty (a précis of the project here). We are presently in the process of conducting a systematic review of judicial reviews in which issues of candour is raised. Once such work has been completed, we will have a more comprehensive understanding of how often consequences occur.