Failure to satisfy duty of candour in judicial review proceedings “disturbing”

The London Borough of Brent has been heavily criticised in the High Court for its failure to comply with the duty of candour in a judicial review case involving ‘leaving care’ duties owed to a former relevant child under the Children Act 1989.

“On reading the papers, I was concerned that the Council had not fully complied with its duty of candour and questioned at the beginning of the hearing whether the Court had been given an accurate account of the material facts.  It was evident from the bundle that there were a large number of significant redactions in the documents and there were documents … which were missing.  I asked the Council to consider this and I am told that some 400 unredacted documents were provided to the Claimant’s legal team during the course of the lunchtime adjournment…"

Citing the 2002 Quark Fishing case [the judgment of which memorably begins with the Denning-like intonation: “The Patagonian Toothfish (Dissostichus Eleginoides) swims the deep waters of the southern seas.”] and the somewhat less poetic Administrative Court Judicial Review Guide 2017, the Judge branded such poor compliance with the very high duty placed on public authority defendants inexcusable and, in the particular context of vulnerable children and young adults, ‘disturbing’.

Parties to judicial review proceedings – claimants and defendants alike – must ensure that all relevant information and material facts are put before the Court, whether those support or undermine their case, and the duty must be kept under continuous review as the case proceeds. Litigation must be conducted, as it is often said, with the cards face upwards. But the duty upon the public authority is a particularly heavy one, given the relatively privileged position it will generally occupy in terms of possession of and access to documentation.

The Judge concluded with a salutary warning to anyone who might be similarly tempted to seek to discharge their obligations in a less than exhaustive fashion:

“The Court’s overriding concern is to ensure that the interests of children and young persons have been properly protected and the question of inconvenience and costs to the authorities concerned in reporting and accounting for their decisions and actions cannot be permitted to take precedence or to provide an excuse for a failure to comply.  It is the responsibility of the lawyers involved in such cases to ensure that all those involved in the authority are aware of the duty of candour and comply with it.”

If you require any advice on your disclosure obligations in the course of litigation, please do not hesitate to contact us.

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