The duty of candour and housing-related judicial review

India Flanagan and Jack Barber examine the duty of candour in the context of housing related judicial review claims.

Anyone who has spent any time in the Administrative Court will likely be familiar with the oft-repeated emphasis on a need for procedural rigour in judicial review proceedings. One aspect of this overarching requirement is the need for all parties to comply rigorously with the duty of candour at all times.[1] Failure to comply with procedural requirements can result in court sanctions and wider reputational damage.

In this article, we consider the duty of candour in the context of housing related Judicial Reviews (‘JR’), including consideration of the duty, application to housing cases, and practical points arising.

What is the Duty of Candour?

The general rules governing the disclosure of documents in civil claims do not apply to judicial review claims.[2]

Instead, all parties are subject to the ‘duty of candour’ (‘the duty’), which applies throughout the JR procedure. Parties are obliged to ensure that all relevant material and all material facts are put before the court, so parties must disclose relevant information or material facts which either support or undermine their case. The courts have emphasised that this amounts to a very high duty on public authority respondents to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide.[3]

Recent practice guidance from the Administrative Court

The Administrative Court has elucidated on the nature of the duty. For example, Fordham J recently set out ten principles in the course of giving practitioner guidance in R (Police Superintendents’ Association) v The Police Remuneration Review Body & Anor [2024] 1 W.L.R. 166[4], at [15] (emphasis added):

“(1) The ‘Standard Disclosure’ Principle. In judicial review, unlike most civil claims (CPR31), the parties are not generally required to give standard disclosure of documents (CPR PD54A §10.2), which means simply giving or offloading lots of documents is unnecessary and inappropriate (Hoareau §§19-20). (JR Guide 2022 §15.1.1; Gardner §22)

(2) The ‘Just Disposal’ Principle. In judicial review, the test for ordering disclosure of specific documents or categories of documents (CPR31.12(1)) is necessity to resolve the matter fairly and justly (Tweed §3), a test also governing requests in judicial review for further information (CPR18.1: see R (Bredenkamp) v SSFCA [2013] EWHC 2480 (Admin) §19) and cross-examination. (JR Guide 2022 §§7.6.2, 11.2.2; Gardner §§25, 27, 29 and 35)

(3) The ‘Candid Disclosure’ Principle. Judicial review is conducted with all cards face upwards on the table (Huddleston 945F), meaning full and fair disclosure of all ‘relevant material’ so the court can decide whether the public authority acted lawfully (Bancoult §192), based on an underlying principle that public authorities are engaged in a common enterprise with the court to fulfil the public interest in upholding the rule of law (Hoareau §20). (JR Guide 2022 §15.3.5, Gardner at §20; JM §90)

(4) The ‘Information-Too’ Principle. Candid disclosure also requires that relevant facts be identified in witness statement evidence, insofar as unapparent from disclosed contemporaneous documents (Belize §86), which means breach of the duty can lie in non-disclosure of a material document or the omission or obscuring in a witness statement of a fact or identified significance of a fact or document (Citizens UK §106(4)). (JR Guide 2022 §15.3.5; Gardner §21)

(5) The ‘Relevant Material’ Principle. Candid disclosure is required of (a) those materials reasonably required for the court to arrive at an accurate decision (Graham §18), (b) full and accurate explanations of all the facts relevant to the issue that the court must decide (Quark §50 Citizens UK §106(3); Hoareau §20) and (c) a true and comprehensive account of the way in which relevant decisions in the case were arrived at (Quark §50; Downes §21) including the underlying reasoning (CPR PD54A §10.1). (JR Guide 2022 §§15.3.1, 15.3.4; Gardner §20; JM §90)

(6) The ‘Non-Selectivity’ Principle. Candid disclosure must not be selective but must include the unwelcome along with the helpful (Taylor §60; Graham §18; Hoareau §21). (JR Guide 2022 §15.3.5)

(7) The ‘Best Evidence’ Principle. Documents should be produced, not gisted or a secondary account given, since the document is the best evidence of what it says: Tweed §4; Hoareau §24; National Association §§47, 49). (JR Guide 2022 §15.1.3; Gardner §21)

(8) The ‘Redaction’ Principle. Documents need not be disclosed in their entirety but can be redacted (Tweed §33) for public interest immunity, confidentiality, legal professional privilege or statutory restriction. (JR Guide 2022 §15.5.1)

(9) The ‘Permission-Stage’ Principle. The duty of candour applies prior to – and for – the Court’s consideration of whether to grant permission for judicial review, though what is required to discharge the duty at the substantive stage will be more extensive (Terra Services §§9, 14), and the limited nature of disclosed material could inform a decision to grant permission (R (Sky Blue Sports & Leisure Ltd) v Coventry City Council [2013] EWHC 3366 (Admin) [2014] ACD 48 §25). (JR Guide 2022 §15.3.2)

(10) The ‘Unpleaded-Grounds’ Principle. The duty of candour extends to documents and information which will assist the claimant’s case or may give rise to further grounds of challenge which might not otherwise occur to the claimant: De Smith’s Judicial Review (9^th edition) at §16-026; Treasury Solicitor’s Guidance [2010] JR 177 at §1.2; R (K, A & B) v SSD [2014] EWHC 4343 (Admin) §11; after R v Barnsley Metropolitan Borough Council, ex p Hook [1976] 1 WLR 1052, 1058C-D (cited in Graham §18).”[5]

Housing practitioners should obviously seek to follow this guidance and take heed that the duty is multi-faceted, relatively onerous, and requires proactive case management and internal organisation by all parties.

How has the duty arisen in recent housing cases?

Several recent decisions have considered the extent and/or scope of the duty in housing-related proceedings, including IAB & Ors, R (On the Application of) v Secretary of State for the Home Department & Anor [2023] EWHC 2930 (Admin) (‘IAB’) and Montano, R (On the Application Of) v London Borough of Lambeth [2024] EWHC 249 (Admin) (‘Montono’).

In IAB, the Claimants challenged a decision, which was made by the Secretary of State for the Home Department for Levelling Up, Housing and Communities, to create the Houses in Multiple Occupation (Asylum-Seeker Accommodation) (England) Regulations 2023 (‘the Regulations’).[6] The Court of Appeal recently considered the duty in the context of satellite litigation concerning two rather specific issues:

1. Is it permissible for the Secretaries of State to routinely redact the names of civil servants outside the Senior Civil Service from disclosed documents?
2. Should the redaction claimed for Legal Professional Privilege (LPP) be maintained?

The Court considered that the names of civil servants outside the Senior Civil Service, should not be routinely redacted from disclosed documents. Such redactions exacerbate issues as to understanding the decision-making process, and in contextualising the significance of each disclosed document. The court considered that the practice of routinely applying such redactions was inimical to open government and unsupported by authority: per Bean LJ, at [36]. The Court emphasised that the duty encompasses an obligation of explanation, which may be provided in witness statements, or by the disclosure of relevant documents, or both. The judgment highlighted the significant criterion for disclosure of documents in JR proceedings. Although this is only loosely a ‘housing case’, housing practitioners should seek to ensure that any redaction and wider disclosure practice is properly justified, managed, and monitored in the face of the duty.

In Montano, the Court considered a request, which was made by the Claimant, that the Local Authority exercise a discretion to back date her entry on the housing register (for the purposes of greater priority for an allocation of social housing) to the date of her homeless application. The Local Authority refused, as it denied that it was able to exercise discretion under its housing allocation policy, and the Claimant brought a JR of this decision.

In allowing the JR proceedings, the Court considered that the Local Authority’s scheme did in fact permit discretion on the registration date. Deputy High Court Judge Glasson considered that the discretion was via the Local Authority’s ability to add additional priority to homeless persons, and by removing a joint applicant, being classed as a new application that may result in loss of priority by the registration date.

In allowing the claim, Deputy High Court Judge Glasson considered the duty of candour, and emphasised the need for defendants to co-operate with requests for information from other parties, and to reflect on what is required in particular contexts, if necessary, considering whether there is a need to file evidence to assist the court with a “full and accurate explanation” of its position, if necessary. That a public authority is hard-pressed and has scarce resources cannot excuse it from compliance with the duty of candour and cooperation: at [79].  Compliance with the duty is paramount, and practitioners should be aware of the wider legal and reputational risks associated with potential non-compliance.

Key takeaways from recent developments

Although the application of the duty will be fact-specific to each case, practitioners and public bodies should note the following:

Assuming that the duty has been discharged: Parties need to ensure that they have complied with the extent of the duty. As demonstrated in IAB, disclosure of a document is often not sufficient to discharge the duty, but what is required, is a clear explanation (usually in a witness statement) as to the importance of the document, so that the Judge can understand the full context. In addition, the duty extends to evidence and/or information, which may give rise to additional grounds of challenge, which have not been pleaded.

Preparation at an early stage: it is always helpful to obtain clear and detailed instructions at an early stage, which may assist in identifying the relevant facts and information. For example, factual disputes and/or proportionality issues, may increase the possibility of disclosure requests, and/or disclosure may be necessary to resolve factual issues, particularly when issues are raised in relation to proportionality and/or procedural fairness. Searches of the relevant information can and should be carried out as soon as practicable. Early preparation may also allow potentially relevant documents to be kept, once the litigation is in prospect.

The type of disclosure required: Similarly, as Fordham J explained in the ‘information-too principle’, a breach of the duty can occur if a party has not disclosed a fact (or highlighted the significance of fact or document), and therefore the provision of relevant information is arguably as important, as the provision of relevant documents.

Disclosure statements: whilst disclosure statements are not mandatory, it is often useful to provide a voluntary statement in complex cases.

Redactions and confidentiality: notwithstanding the principles identified in IAB, any redactions undertaken should be in compliance with the principles identified in IAB. In addition, it is also good practice to notify third parties about whom confidential information may be disclosed, prior to the disclosure, in order to given them an opportunity to consent or object.

India Flanagan and Jack Barber are barristers at Cornerstone Barristers.

• [1] Administrative Court Guide 2023, para. 2.1.3.2
• [2] CPR 54A PD 10.1; Administrative Court Guide 2023, para. 7.6.1
• [3] R (on the application of Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs (No.1) [2002] EWCA Civ 1409, per Laws LJ at [50]
• [4] Although the judgement related to a permission decision, Fordham J confirmed that it can be citable (as per the Practice Direction (Citation of Authorities) [2001] 1 WLR 1001).
• [5] Note, the JR Guide 2022 is updated annually, and a more recent iteration has been published since this decision.
• [6] These draft regulations were withdrawn on the eve of the substantive hearing of the underlying judicial review to the draft regulations, and the Secretary of State has decided not to pursue its policy of exempting asylum seekers from HMO licensing requirements. The Secretary of State was ordered to pay the claimants’ costs on an indemnity basis.