Navigating commercial judicial review: the duty of candour – ensuring that public bodies give a true and comprehensive account of decision-making

In this mini-series, Fieldfisher's tier 1 ranked Public law team outline a few hot topics for claimants in commercial judicial review cases.

In this edition, Partner Sarah Ellson and Associate Jen Qosja provide an overview of the common law 'duty of candour' and its key practical implications for businesses and public bodies.   

What is the duty of candour?

The duty of candour requires parties to a judicial review claim to provide, and draw the court's attention to, all material information relevant to the issues in the case, in a manner which is both thorough and proportionate. This applies regardless of whether the information supports or undermines a party's case. The duty should inform the parties' approach to all communications with each other, and all oral and written submissions to the court.

Several serious consequences may result from a party's failure to fulfil the duty of candour. In addition to any reputational damage, the court may (amongst other things): draw adverse inferences from omissions; refuse to rely on evidence produced at a late stage; and grant an adverse costs order.

To whom does the duty apply?

The duty applies to all parties to a claim. However, in practice, scrutiny may more frequently be applied to defendant public bodies given that the subject of challenge will typically be their decisions and acts. Public bodies' approaches to compliance with the duty can vary significantly. As a result, a firm understanding of the parameters of the duty can be a key arrow in any claimant's quiver in order to obtain a comprehensive picture of a public body's decision-making and thereby ensure a strong evidential basis on which to support a judicial review challenge.

Claimants will also need to ensure that they disclose relevant information of which they are aware throughout the proceedings. This will be particularly important where, for example, a claimant makes an application for a judicial review cost capping order, in which case they must ensure that they have made full and comprehensive disclosure of their true financial position and other potential sources of funding.

When is the duty triggered?

The duty applies as soon as the public body is aware that someone is likely to test a decision or action affecting them, and continues to apply to both parties through every stage of the proceedings (including the pre-action stage). An approach of revealing as little as possible and only in response to specific requests from the other party is likely to involve a breach of the duty of candour.

What information must be provided under the duty of candour?

In deciding what information and documents should be disclosed, parties will need to consider whether the information is necessary in order to "resolve the matter fairly and justly", judged by reference to the issues raised by the parties' pleadings. Whilst documents being relied on should be disclosed, parties must guide the court to material information and documents, rather than just including relevant documents in the court bundle.

In certain circumstances, parties are permitted to withhold information or provide it in restricted form. For example, parties may: provide a document with redactions or by deploying document summaries; establish confidentiality rings where only prescribed individuals may access restricted documents; or apply to the court for permission to withhold information on the basis of 'public interest immunity'.

Latest guidance from the court

The duty of candour has come under the spotlight over the past few years, prompting the courts to reflect on its parameters.

1. Redactions

• Junior officials in public bodies do not have a general right to anonymity: The Court of Appeal held in Secretary of State for the Home Department v IAB (February 2024) that routine redaction of the names of civil servants in documents disclosed in judicial review proceedings is contrary to the duty of candour, in the absence of good and specific reasons for redaction.
• Details of a document's author are relevant and can only be redacted with permission of the court: The High Court underlined in FMA v Secretary of State for the Home Department (June 2023) that details of a document's author are relevant (and accordingly should not be redacted) as they explain a document's provenance and context, including its significance. The court also considered the names of recipients and people copied into messages to be relevant. If a party wishes to redact such information from disclosable documents, an application to the court should be made and the application should explain the reason for the proposed redaction, and when necessary set out supporting evidence.
• The court also emphasised in FMA that redactions on the basis of irrelevance should not generally be made other than in limited specific circumstances.

2. Agreements to not disclose

• Parties cannot contract out of the duty of candour: The High Court made clear in MTA v Secretary of State for the Home Department (March 2024) that it is not open to parties to attempt to 'contract out of' the duty of candour, in circumstances where the duty would otherwise require disclosure. In that case, the parties had purported to agree that the defendant government authority could redact names of junior officials following the IAB judgment (which would otherwise have prevented such redactions from being made).
• Consent orders will not be approved where they have the effect of replacing judicial discretion: In Public and Commercial Services Union v Secretary of State for the Home Department (April 2022), the High Court refused to approve a draft consent order prepared by the parties, which purported to establish a confidentiality club in respect of certain redacted material, on the basis of public interest immunity. The court highlighted that the consent order had the effect that a private hearing would be required (as the redacted information could only be discussed in such manner) and, given that it is only for the court to determine whether a private hearing is permissible, the parties could not achieve this by consent.  

Practical takeaways

If there are concerns regarding whether a public body has disclosed all relevant information in judicial review proceedings, a claimant may consider whether it would be appropriate in the circumstances to:  

1. make reasonable requests for clarifications where a public body has not explained the importance or context of a document, or otherwise something is unclear;
2. draw out concerns about omitted information in submissions and other communications with the other party, including whether inferences may be drawn;
3. enquire whether informal communications formed part of decision-making (e.g. Whatsapp messaging), or whether AI tools were deployed, which may require more explanation by defendant public bodies;
4. establish a confidentiality ring (with permission of the court) in order to gain access to confidential information;
5. challenge the use or extent of redactions in documents, including where individuals' names have been redacted; and/or
6. make an application to the court for a disclosure order, including against a non-party.

If you would like to discuss any of the issues raised in this blog, please get in touch with our team.

The content of this blog does not constitute legal advice and is provided for general information purposes only. Specific legal advice should be sought before taking any actions based on the content of this blog.