England and Wales High Court (Commercial Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice
		16th May 2018

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LORD JUSTICE SINGH:

Introduction

1. These two claims for judicial review are due to be heard by this court later this year. They arise out of a Ministerial announcement made on 16 November 2016.
2. There are now before the court two applications pursuant to Part 54 of the Civil Procedure Rules: (1) an application by the claimants for specific disclosure pursuant to Part 31 of the Civil Procedure Rules; (2) an application by the claimants for further information pursuant to Part 18 of the Civil Procedure Rules. Both applications were set out in a document headed "Consolidated Application" on 13 April 2018. On 3 May the claimants served a number of supplementary requests for further information. On 4 May the defendant served a response to the Consolidated Application together with a further tranche of disclosure. More recently, on 14 May, the defendant responded to the supplementary request in a manner which, we are informed, was satisfactory to the claimants. As a result of these developments and as a result of more recent discussions, the parties have been able to reach agreement on the requests for further disclosure and information.
3. At the hearing before us we have been assisted by Mr Edward Fitzgerald QC for the second claimant, Mr Ben Jaffey QC for the first claimant and Mr Kieron Beal QC for the defendant. We are grateful to all of them, to junior counsel and to the solicitors for each party for the work which has been done in preparation for this hearing. As a result of their diligence and co-operative attitude it has been possible to resolve the outstanding issues in a satisfactory way. This is particularly important in a case such as this one which has a long history and in which there was in the past a failure to disclose relevant documents known as "the Rashid documents". It was that failure which formed the basis for the application to the Supreme Court in R (On Application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 4) [2016] UKSC 35, [2017] AC 300 to set aside the decision of the House of Lords in Bancoult (No.2) [2008] UKHL 61, [2009] 1 AC 453.
4. Although the parties have been able to reach agreement in this case, we hope it will still be helpful if we briefly set out what the issues in this case are and the relevant legal principles when the court has to consider an applications for disclosure in judicial review proceedings.

The grounds of challenge and the present claims for judicial review

5. In Hoareau there are seven grounds of challenge for which permission has been granted: (1) unlawful fettering of discretion as to resettlement; (2) the decision as to resettlement was disproportionate; (3) failure to give adequate reasons; (4) the consultation process was unfair; (5) breach of Art.8 and Art.1 of the First Protocol, contrary to the Human Rights Act 1998; (6) conclusions as to the financial support package were irrational; (7) there was a breach of the public sector equality duty in s.149 of the Equality Act 2010.
6. In Bancoult there are three grounds of challenge for which permission has been granted: (1) what is called the "right of abode decision" was unlawful and inconsistent with the requirements of the common law; (2) the resettlement decision was unlawful and inconsistent with the requirements of the common law; (3) the consultation process was flawed in so far as there was a failure conscientiously to consider the responses from Chagossians.
7. We have been informed at the present hearing that there is a proposal on the part of the claimants to apply for permission to amend the grounds for judicial review. That is something for which provision has been made in the agreed terms of a draft order which the parties will file after this hearing.

Relevant legal principles

8. We are grateful to the parties for their skeleton arguments and for their brief oral submissions on the relevant legal principles.
9. In the light of those submissions, the following principles seem to us to be uncontroversial. Disclosure is not automatic in judicial review proceedings. In this respect, judicial review differs from ordinary civil litigation (see PD 54A, Civil Procedure Rules, para.12 which confirms that disclosure is not required in judicial review proceedings unless the court orders otherwise). One reason for this is that the nature of the issues in judicial review proceedings differs from most civil litigation. It is usually both unnecessary and inappropriate for the court to resolve factual disputes. The issues are usually ones of law.
10. That said, factual issues can arise, for example, in deciding what happens when an argument is made that a public authority failed to follow the rules of procedural fairness. Cases under the Human Rights Act may call for a different approach to be taken for the resolution of factual disputes depending on the nature of the issue. Quite often the question of proportionality in a human rights case may require the court to engage in a judgment which calls for an evaluation of the facts to see, for example, whether a fair balance has been struck between the rights of the individual and the general interests of the community.
11. Nevertheless, even in the human rights context it is usually unnecessary for the court to resolve disputes of fact as distinct from forming an evaluation of those facts. In those cases where the court does have to consider whether to order specific disclosure - as the House of Lords made clear in Tweed v Parades Commission for Northern Ireland [2006] UKHL 53, [2007] I AC 650, para.3 -

"3 ... The test will always be whether, in the given case, disclosure appears to be necessary in order to resolve the matter fairly and justly." (Lord Bingham of Cornhill)

12. In the same case the House of Lords made it clear that there is no warrant even in such a context for "fishing expeditions" (see para.31 (Lord Carswell) and para.56 (Lord Brown of Eaton-under-Heywood)).
13. One of the reasons why the ordinary rules about disclosure do not apply to judicial review proceedings is that there is a quite separate but very important duty which is imposed on public authorities which is not imposed on other litigants. This is the duty of candour and co-operation with the court, particularly after permission to bring a claim for judicial review has been granted. This duty goes back at least to the decision of the Court of Appeal in R v Lancashire County Council, ex p Huddleston [1986] 2 All ER 941 which was cited with approval by Lord Walker of Gestingthorpe in Belize Alliance Conservation of Non-governmental Organisations [BACONGO] v Department of the Environment [2004] UKPC 6, [2004] Env LR 38 at para.85.
14. It is worth spending a moment on reminding oneself of what Sir John Donaldson MR (as he then was) said in Huddleston at p.945:

"But in my judgment the position is quite different if and when the applicant can satisfy a judge of the public law court that the facts disclosed by her are sufficient to entitle her to apply for judicial review of the decision. Then it becomes the duty of the respondent to make full and fair disclosure."

15. Before continuing with the citation we pause to comment that this may explain why in some of the more recent authorities there is a reference made to a duty on the respondent "to make full and fair disclosure". Of course since Huddleston was decided the Civil Procedure Rules have replaced the Rules of the Supreme Court. What we used to call "discovery" is now called "disclosure". It is important therefore to understand that what the court was referring to in Huddleston was not disclosure in the modern sense.
16. To continue with the citation from Huddleston, Sir John Donaldson MR continued:

" ... the evolution of what is, in effect, a specialist administrative or public law court is a post-war development. This development has created a new relationship between the courts and those who derive their authority from the public law, one of partnership based on a common aim, namely the maintenance of the highest standards of public administration."

The MR continued:

" ... It is for the respondent to resist [the] application if he considers it to be unjustified but this is a process which falls to be conducted with all the cards face upwards on the table and the vast majority of the cards will start in the authority's hands."

17. After citing that passage in BACONGO, Lord Walker continued at para.86:

"Similar observations have been made in many later cases, including several decisions of the House of Lords. It is now clear that proceedings for judicial review should not be conducted in the same manner as hard-fought commercial litigation. A respondent authority owes a duty to the court to cooperate and to make candid disclosure, by way of affidavit, [today of course an affidavit is usually not required and evidence is given in the form of a witness statement] of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged in the judicial review proceedings."

(See also Bancoult (No 4) at paras.183-184 in the judgment of Lord Kerr JSC who, although he was in the minority in relation to the substantive decision in that case, on this point, was simply summarising the well-established principles to be found in earlier authorities to which he made reference.)

18. As Fordham Judicial Review Handbook (6th Edn 2012) puts it at p.125, this is "a self-policing duty". A particular obligation falls upon both solicitors and barristers acting for public authorities to assist the court in ensuring that these high duties on public authorities are fulfilled.
19. One important aspect of the duty of candour and co-operation which should be emphasised and is not always fully appreciated is that it may tend in a different direction from what usually happens when disclosure is required or ordered in the sense of disclosure of documents. Simple disclosure of documents might suggest that all that the public authority has to do is give a lot of documents to the claimant's representatives but this may, in truth, overwhelm them and obfuscate what the true issues are.
20. The duty of candour and co-operation which falls on public authorities, in particular on HM Government, is to assist the court with full and accurate explanations of all the facts relevant to the issues which the court must decide. It would not, therefore, be appropriate, for example, for a defendant simply to off-load a huge amount of documentation on the claimant and ask it, as it were, to find the "needle in the haystack". It is the function of the public authority itself to draw the court's attention to relevant matters; as Mr Beal put it at the hearing before us, to identify "the good, the bad and the ugly". This is because the underlying principle is that public authorities are not engaged in ordinary litigation, trying to defend their own private interests. Rather, they are engaged in a common enterprise with the court to fulfil the public interest in upholding the rule of law.
21. It was common ground before us that there is a duty on public authorities not to be selective in their disclosure (see Lancashire County Council v Taylor [2005] 1 WLR 2668, para.60 and also R (On Application of National Association of Health Stores) v Secretary of State for Health [2005] EWCA Civ 154, para.47).
22. In this context we are grateful to Mr Jaffey for drawing our attention to two authorities: the first is a decision of Girvan J in Northern Ireland in the Matter of an Application by Brenda Downes for Judicial Review [2006] NIQB 77. At para.31 Girvan J said:

"Before concluding this aspect of the case it is timely to forcefully remind parties of their duties of candour in relation to the provision of information to the court. The affidavits of all parties should be drafted in clear unambiguous language. The language must not deliberately or unintentionally obscure areas of central relevance, and draftsmen should look carefully at the wording used ... to ensure that it does not contain any ambiguity or is economical with the truth of the situation. There can be no place in affidavits in judicial review applications for what in modern parlance is called 'spin'. Public bodies and central government agencies in particular are involved in the provision of fair and just public administration and must present their cases dispassionately and in the public interest. Justice lies at the heart of public interest and can only be served by openness in assisting the court to arrive at a proper and just decision. The judicial restraint on matters such as discovery [in England and Wales of course disclosure now] and cross-examination would not long survive if lack of frankness and openness were to become commonplace in judicial review applications."

23. The other decision is that of the Court of Appeal in England and Wales in R (On the application of Mohammad Shahzad Khan) v Secretary of State for the Home Department [2016] EWCA Civ 416 in the concurring judgment of Ryder LJ, at para.71. That was a case that concerned the related duty of candour which falls upon a claimant in judicial review proceedings. Ryder LJ said:

"71 I agree with McCloskey J in R (Bilal Mahmood) v Secretary of State for the Home Department [2014] UKUT 00439 that the duty of candour which is a duty to disclose all material facts known to a party in judicial review proceedings applies to all parties in the proceedings. The duty is not to mislead the court which can occur by the non-disclosure of a material document or fact or by failing to identify the significance of a document or fact."

24. In the skeleton arguments in the present case there appeared at one time to be some dispute between the parties as to whether the "best evidence" rule remains in this context. On behalf of the defendant it was submitted there is no such rule any longer in civil proceedings, let alone in judicial review cases (see Masquerade Music Ltd v Bruce Springsteen [2001] EWCA Civ 563, [2001] CP Rep 85, paras.64, 65, 77 and 85 (Jonathan Parker LJ)). Nevertheless, it was accepted and, indeed, submitted on behalf of the defendant that where a public authority relies on a document as "significant" to its decision, it is ordinarily good practice to exhibit that document (see R (On Application of National Association of Prison Officers) v Secretary of State for Justice, para.15 (Irwin J, as he then was) citing Tweed at paras.4 (Lord Bingham) and 39 (Lord Carswell)). In the end we did not understand that proposition to be controversial.

The applications in the present case

25. As we have mentioned, the parties have now been able, after some discussion both before and after the hearing before us, to agree the terms of a draft order which has been placed before the court. Subject to some of the comments which have been made on that draft order, the court is content to approve it. Counsel are now invited to agree the final form of that order and to submit that agreed draft in due course to members of this court for their final approval.

LORD JUSTICE SINGH: Can I check if there is anything else?

MR FITZGERALD: No, my Lord.