Duty of candour

Candour is generally recognised as being A Good Thing. Indeed, the word itself comes from the Latin candor, meaning dazzling whiteness or brilliancy; by extension connoting the moral attributes of purity, integrity and innocence. These have led to the common understanding of candour as denoting frankness and openness.

In the context of judicial review proceedings, the courts recognise that defendants owe a duty of candour and disclosure. As Cranston and Lewis JJ observed in a discussion paper prepared for the lord chief justice in April 2016, this duty is essentially one ‘owed by the defendant to give a full and accurate explanation of its decision-making process, identifying the relevant facts and the reasoning underlying the measure being challenged’.  

The London Borough of Brent was on 10 May 2018 criticised by David Elvin QC, sitting as a deputy High Court judge, for failing properly to discharge its duty of candour in a judicial review brought against it in a child care case concerning (among other things) refusal to recognise the claimant as a child in need requiring accommodation under section 20 of the Children Act 1989. This was R (KI) v London Borough of Brent [2018] EWHC 1068 (Admin).

Although the claimant’s substantive challenge succeeded, this article will focus solely on the court’s comments concerning the council’s failure properly to fulfil its duty of candour.

Material facts

Paragraphs 6.4 and 14.1 of The Administrative Court: Judicial Review Guide 2017 (the guide) address this area. As paragraph 6.4.1 explains, the duty of candour is a special one affecting parties to judicial review. This requires parties to ‘ensure that all relevant information and all material facts are put before the court’.’ Parties must therefore ‘disclose any information or material facts which either support or undermine their case’. The guide makes clear that compliance with the duty of candour is ‘very important’.

Paragraph 14.1.3 of the guide warns that the ‘court will take seriously any failure or suspected failure to comply with the duty of candour’. Parties or their representatives may be required to explain why information or evidence was not disclosed to the court, and any failure may result in sanctions. The duty of candour is a continuing one (paragraph 14.1.5).

In the case of public authorities, the duty is particularly resonant. For as Singh J (as he then was) said in R (Midcounties Co-operative Ltd) v Forest of Dean DC [2015] EWHC 1251 (Admin), ‘the relationship between a public authority defendant and the court is not the same as that between an ordinary litigant and the court… it had been clear since the decision of the Court of Appeal in R v Lancashire County Council, Ex parte Huddleston [1986] 2 All ER 941 that a public authority defendant in judicial review proceedings had a duty of candour and co-operation, so as to assist the court in understanding its decision-making process and to deal with the issues fairly.’

This requires an authority ‘to conduct the litigation with its cards face upwards… based on the concept that it acted in the public interest, and not merely to protect a private, commercial interest’.

Court’s view

In the instant case, David Elvin QC said he was concerned that Brent Council ‘had not fully complied with its duty of candour’. The judge indicated that it was ‘evident from the bundle that there were a large number of significant redactions in the documents and there were documents, especially the initial viability assessment, which were missing’. He was told ‘that some 400 unredacted documents were provided to the claimant’s legal team during the course of the lunchtime adjournment of the one-day hearing’.

It appeared that the council’s legal department did not have direct access to ‘client’ records, that the social services department keep records in multiple files and that ‘the legal department is dependent on the provision of the information through the data protection team’. However, the judge indicated that the ‘difficulties encountered cannot justify the failure by Social Services, the witness and the Council’s Legal Department properly to review the material disclosed or referred to…’. In the circumstances, since the case concerned duties owed to vulnerable children (latterly young adults) the court found ‘this lack of effective procedures to ascertain the facts and obtain relevant documents from the department concerned to be disturbing’.

The judge therefore concluded that the council had not properly discharged its duty in this case. He said that this was ‘of particular concern given the nature of the claim and the vulnerable status of the claimant’. The court could not ‘emphasise strongly enough the importance of the duty of candour in the case of vulnerable children and young people and that the local authorities charged with these duties should have in place procedures to ensure that they do not fall into similar errors such as those made by Brent Council in this case’.

Moreover, all local authority lawyers in particular should note the court’s comment that: ‘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.’

Comment

Many local authority departments have often seemed (particularly at more junior levels) to consider themselves as independent and autonomous bailiwicks. However, I would suggest it is the responsibility of local authority lawyers (as necessary at a senior level) to ensure that corporate processes are cohesive and effective to ensure that the authority as a statutory body at all times complies with its relevant legal duties.  

Brent Council has apparently formulated a plan to avoid such problems recurring and is reviewing all judicial review cases involving the council’s children and young people’s team.

 Nicholas Dobson is a consultant with Freeths