In the United Kingdom there are, broadly speaking, three arms of the state: the legislature, the executive and the courts. Each has its own powers. In this jurisdiction, the courts have the power to intervene with the actions, decisions and policies of the executive and, to some degree, those of the legislature. They are able to do this through the medium of judicial review, a legal procedure which enables executive action and decisions to be scrutinised and challenged by an independent and external eye.
The duty of candour in judicial review proceedings is the duty of the public body party… to be open and frank throughout the proceedings.
In R v Secretary of State for Transport, ex parte London Borough of Richmond Upon Thames (No 3)  Env LR 409, Mr Justice Sedley explained that judicial review is that process which is intended to ‘ensure that government is conducted within the law.’ Therefore, judicial review is instrumental in ensuring that the balance of power is as it should be or, as Lord Templeman put it, ‘to restrain the excess or abuse of power’ (R v Secretary of State for the Home Department, ex parte Brind  1 AC 696 at 751B). In order for this process to have any meaningful effect, however, all issues and relevant documentation must be available for disclosure.
What is the duty of candour?
The duty of candour in judicial review proceedings is the duty of the public body party to the proceedings (the defendant) to be open and frank throughout the proceedings. This means that when the public body responds to an application for judicial review, they are obliged to be open from the outset. This duty applies not only to documents which may be submitted to the court, but to all information relevant to the issues in the application. Their sole aim must not be to win the litigation at all costs. In Lancashire County Council, ex parte Huddleston  2 All ER 941, Lord Donaldson MR put this principle in the following terms:
…[judicial review] 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.
The aim of a judicial review should be to assist the court in finding the correct conclusion. This will, in the words of Lord Donaldson MR, maintain ‘the highest standards of public administration.’ This is imperative because the public body will often have the ‘majority of cards in its hands’, and the claimant, often a private individual, may not have the economic or financial resources of the public authority.
Who represents the defendant in judicial review proceedings?
Given that the defendant in judicial review will either be a government department or public body, they will generally be represented by the Treasury Solicitor. The Treasury Solicitor’s Department provides legal services to many government departments and other publicly funded bodies in England and Wales.
This will, in the words of Lord Donaldson MR, maintain ‘the highest standards of public administration.’
What is the duty of the defendant’s solicitor in judicial review proceedings?
The defendant’s solicitor has two central obligations with regards to disclosure in judicial review proceedings. They are as follows:
- The duty to ensure that the client (defendant) is fully aware of the duty of candour, that is to say, fully aware that he has a duty to ensure that full and proper disclosure is given.
- The duty to look through all documents disclosed by the client to ensure that no documents have been left from the client’s list.
It is the solicitor who has the overriding responsibility of the disclosure process, not his client (Hedrich v Standard Bank London Ltd  EWCA Civ 905). Additionally, if the solicitor subsequently becomes aware that the documents or any statement of truth is inadequate, incorrect or misleading, he is under an active duty to rectify the matter at the earliest opportunity. He is not to await an order from the court instructing him to do this. Equally, he is under a duty to inform the other side that documents were omitted.
What if the defendant fails to give full disclosure to his solicitor?
Under these circumstances, the solicitor’s duty is to the court and he must withdraw from the case (Matthew and Malek on Disclosure, 3rd edition, Chapter 14).
What happens if the duty of candour is not adhered to?
Failure to discharge the duty of candour may result in one of the following:
[The Treasury Solicitor] is under an active duty to rectify the matter at the earliest opportunity. He is not to await an order from the court instructing him to do this.
- The court may make a formal order for disclosure.
- If the material is subsequently produced, it may not be relied on without prior permission from the court.
- Adverse inferences may be drawn.
- There may be allegations of deliberate concealment which may affect the outcome of the case.
Why is the duty of candour so important in judicial review proceedings?
Given that one of the purposes of judicial review is to ensure that public bodies are accountable for their actions, proper disclosure is necessary to ensure that full accountability and scrutiny is possible. If the duty of candour is not abided by, it may be argued that the public body’s decision cannot be fully and adequately scrutinised, thus defeating the entire object of judicial review. In an age where the public are increasingly aware of their rights and, to some degree, increasingly suspicious of government, full candour is expected from government to maintain public confidence. The duty of candour in a process which strives to keep an independent eye on government departments’ decisions goes some way to protect individual rights from being illegitimately interfered with.