UK Law and Practice Contributed by: Charles Brasted, Julia Marlow, Andrew Eaton and Fraser Eccles, Hogan Lovells International LLP
8. Evidence 8.1 Disclosure/Discovery
evance, and must not be ambiguous or eco - nomical with the truth, mislead by omission or contain “spin” (R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812). • Defendants have an obligation to disclose information “which is relevant or assists the claimant, including on some as yet unpleaded ground” (R (Bancoult (No 2)) v Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 35). • Where a party relies on a document as significant to the decision under challenge, it is good practice to disclose the document rather than merely summarise it, because the document is the best evidence of what it says (Tweed v Parades Commission for Northern Ireland [2006] UKHL 53). “… if a defendant understands, or chooses to read, the claim in a limited way, and thereafter limits the information provided pursuant to its duty of candour accordingly, it is appropriate for a defendant to tell the court in its evidence what it has done” ( R (MP) v Secretary of State for Health and Social Care [2018] EWHC 3392 (Admin)). • Parties must identify and explain the signifi - cance of information or documents, even where they are adverse to the party’s own case (R (Police Superintendent’s Associa - tion) v The Police Remuneration Review Body [2023] EWHC 1838 (Admin)). • The duty is continuous throughout the pro - ceedings, meaning that it may be necessary for the parties to update the court if new developments (eg, whether in relation to their own or the opposing party’s case, or extrane - ous to the proceedings themselves) arise that engage their duty of candour. The duty is “self-policing” but applies with par - ticular force to legal representatives, who have
The general rules on standard disclosure and the inspection of documents in civil proceed - ings (CPR Part 31) do not apply in judicial review proceedings, unless the court orders otherwise (PD54A, paragraph 11.2). Instead, the parties are subject to a duty of candour (see 8.2 Alterna- tives to Disclosure/Discovery ). A party may apply for a court order that another party provide specific disclosure under CPR Part 18. However, the court will only order information to be provided when it is necessary to do so to resolve the matter fairly and justly and requests should be exceptional (ACG, paragraph 7.6.2). When deciding what is reasonably necessary and proportionate, the court may have regard to the fact that the duty of candour applies (R (JZ) v Secretary of State for the Home Department [2022] EWHC 1708 (Admin)). 8.2 Alternatives to Disclosure/Discovery All parties in judicial review proceedings are subject to a duty of candour and co-operation with the court, commonly known as the “duty of candour” . The duty applies equally to claimants, defendants and other parties to the proceedings. The duty is commonly described as a duty to conduct the proceedings “with all the cards face upwards on the table” (R v Lancashire CC, ex Huddleston [1986] 2 All ER 941), requiring the parties to “disclose materials which are reason- ably required for the court to arrive at an accurate decision” (Graham v Police Service Commission [2011] UKPC 46). This means as follows. • Pleadings and evidence must be clear, fair and even-handed, must not deliberately or unintentionally obscure areas of central rel -
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