Andrew Sharland KC and Stephen Kosmin in case setting out ten principles governing the duty of candour

Andrew Sharland KC and Stephen Kosmin appeared for the Police Superintendents’ Association in R (Police Superintendents’ Association) v Police Remuneration Review Body and Secretary of State for the Home Department [2023] EWHC 1838 (Admin), in which Mr Justice Fordham set out ten principles governing the duty of candid disclosure in public law proceedings.  These are as follows:

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).

On the facts, the Home Secretary was found to erred in her approach to the duty of candour in failing to disclose the ministerial submissions relating to the challenged decision to implement a flat-rate pay increase of £1,900 to all police officers. However, Fordham J held that “an appropriate safeguard” was the provision of an assurance by counsel for the Home Secretary at the hearing that, upon review of the ministerial submissions, their disclosure would not serve to assist the claim or give rise to any other ground for judicial review. 

The Police Superintendents’ Association also challenged an associated recommendation of the Police Remuneration Review Body. This was the first such challenge to a pay review body. Fordham J favoured the conclusion that the Police Remuneration Review Body was both amenable to judicial review and bound by the public sector equality duty.