TSOL IN-HOUSE TRAINING PROGRAMME

THURSDAY 22 MARCH 2007

A DEFENDANT’S GUIDE TO
CANDOUR AND DISCLOSURE
IN CLAIMS FOR JUDICIAL REVIEW

1. BASIC RULES & PRINCIPLES

2. TWEED v PCNI [2006] UKHL 53, [2007] 2 WLR 1 (HL)

3. DISCHARGING THE DUTY OF CANDOUR

4. DEALING WITH APPLICATIONS FOR DISCLOSURE

5. PRACTICAL POINTS

6. CONCLUSION

SPEAKER: OLIVER SANDERS

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OUTLINE

1. BASIC RULES & PRINCIPLES

1.1 The overriding objective
1.2 The defendant’s duty of candour
1.3 The disclosure of documents
1.4 What is the real default position?

2. TWEED v PCNI [2006] UKHL 53, [2007] 2 WLR 1 (HL)

2.1 Introduction
2.2 The need for routine “disclosure” of key documents
2.3 Cases where key documents are withheld: a more flexible & less
prescriptive approach to disclosure
2.4 Orders for disclosure to remain exceptional

3. DISCHARGING THE DUTY OF CANDOUR

3.1 The truth, the whole truth & nothing but the truth
3.2 Plain English
3.3 Exhibits
3.4 The dangers of revealing too little
3.5 Is it possible to reveal too much?

4. DEALING WITH APPLICATIONS FOR DISCLOSURE

4.1 When will formal disclosure be ordered?
4.2 Disclosure: ordinary & technical meanings
4.3 The mechanics of disclosure
4.4 Withholding disclosure & inspection

5. PRACTICAL POINTS
5.1 Client expectations
5.2 Advantages of a formal approach

6. CONCLUSION

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1. BASIC RULES & PRINCIPLES

1.1 The overriding objective

• “The parties are required to help the court to further the overriding
objective” (CPR, Part 1.3).

• The overriding objective of the CPR is “enabling the court to deal with
cases justly” (CPR, Part 1.1):
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate–
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
and
(e) allotting to it an appropriate share of the court’s
resources, while taking into account the need to allot
resources to other cases.

• Davies (Joy Rosalie) v Eli Lilly & Co (No 1) [1987] 1 WLR 428 (CA):
Let me emphasise that the plaintiffs’ right to discovery of all
relevant documents, saving all just exceptions, is not in issue.
This right is peculiar to common law jurisdictions. In plain
language, they ask, “should I be expected to provide my
opponent with the means of defeating me?” The answer, of
course, is that litigation is not a war or even a game. It is
designed to do real justice between opposing parties and, if the
court does not have all the relevant information, it cannot
achieve this object (Donaldson MR at p 431).

• Ford v GKR Construction Ltd [2000] 1 WLR 1397 (CA):

Civil litigation is now developing into a system designed to
enable the parties involved to know where they stand in reality
at the earliest possible stage, and at the lowest practicable cost,
so that they may make informed decisions about their prospects
and the sensible conduct of their cases (Judge LJ at p 1400).

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1.2 The defendant’s duty of candour

• All parties to judicial review proceedings are under a general “duty of

candour” requiring them to disclose facts and information needed for
the fair determination of the issues.

• R v Lancashire CC, ex p Huddleston [1986] 2 All ER 941 (CA):

the duty of the respondent to make full and fair disclosure
(Donaldson MR at p 944).
This development [ie the post-war evolution of a specialist
administrative law court] has created a new relationship
between the courts and those who derive their authority from
the public law, one of partnership based on a common aim,
namely maintenance of the highest standards of public
administration (Donaldson MR at p 945).
[Judicial review] is a process which falls to be conducted with
all the cards face upwards on the table and the vast majority of
the cards will start in the authority’s hands… when challenged
[the defendant] should set out fully what they did and why, so
far as is necessary, fully and fairly to meet the challenge... I
express my views in a rather more restricted way, for I would
not wish it to be thought that once an applicant has obtained
leave he is entitled to demand from the authority a detailed
account of every step in the process of reaching the challenged
decision in the hope that something will be revealed which will
enable him to advance some argument which has not previously
occurred to him (Parker LJ at p 946; emphasis in original).

1.3 The disclosure of documents

• A formal disclosure and inspection process involving lists of

documents etc is not required in judicial review proceedings unless the
court orders otherwise (CPR, Part 54, PD, para 12.1).

• The court nevertheless has a broad and somewhat elastic discretion to

order formal disclosure where this is necessary for disposing fairly of
the claim but, in practice, it will only exercise this “sparingly”.

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1.4 What is the real default position?

• The default unavailability of formal disclosure in judicial review rests

on two inconsistent justifications:

(a) disclosure is unnecessary because the nature of judicial review

and the issues before the court do not require access to
documentary materials (O’Reilly v Mackman [1983] 2 AC 237
(HL), Lord Diplock at p 282; R v Secretary of State for the
Environment, ex p Islington LBC & London Lesbian and Gay
Centre [1997] JR 121 (CA), McCowan LJ at p 126 and Nolan
LJ at pp 128-129; Tweed v PCNI [2006] UKHL 53, [2007] 2
WLR 1 (HL), Lord Bingham at para 2);

(b) disclosure is also unnecessary because the duty of candour

results in sufficient disclosure in any event (R v Secretary of
State for the Home Department, ex p Fayed [1998] 1 WLR 763
(CA), Woolf MR at p 775; Secretary of State for Foreign and
Commonwealth Affairs v Quark Fishing Ltd [2002] EWCA Civ
1409 (CA), Laws LJ at para 50; Tweed v PCNI [2006] UKHL
53, [2007] 2 WLR 1 (HL), Lord Carswell at para 31).

• The existence and importance of the duty of candour gives the lie to
the first of these reasons: the court does need a degree of factual
material in order to adjudicate upon most claims for judicial review.

• In reality, the defendant’s evidence stands in lieu of disclosure and, in

turn, formal disclosure will tend only to be ordered in lieu of proper
defendant’s evidence.

• It is a mistake to say either that there is no disclosure in judicial review

or that documentary materials are inherently redundant: some
disclosure is essential, it is simply achieved by an unusual route.

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2. TWEED v PCNI [2006] UKHL 53, [2007] 2 WLR 1 (HL)

2.1 Introduction

• Northern Ireland appeal but expressly relevant to England and Wales.

• Speeches of Lord Bingham, Lord Carswell and Lord Brown (see key
extracts at Annex A below). Lord Hoffmann and Lord Rodger both
concurring with all three.

• Case involved an application for disclosure of key documents referred

to and summarised in the defendant’s affidavits but not disclosed
because of confidentiality concerns.

• Not a major sea change in approach. Rather guidance on the

application of pre-existing principles particularly in relation to key
documents and human rights / proportionality issues.

2.2 The need for routine “disclosure” of key documents

• “Where a public authority relies on a document as significant to its

decision, it is ordinarily good practice to exhibit it as the primary
evidence” (Lord Bingham, para 4).

• Defendants should “routinely” exhibit key documents to their written

evidence and “should be readier to do so whenever proportionality is in
issue” (Lord Brown, para 57).

• There is force in the view that “it is not always possible to obtain the
full flavour of the content of such documents from a summary,
however carefully and faithfully compiled, and that there may be

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nuances of meaning or nuggets of information or expressions of

opinion which do not fully emerge in a summary” and the court may
therefore need to have access to original documents (Lord Carswell,
para 39).

2.3 Cases where key documents are withheld: a more flexible & less
prescriptive approach to disclosure

• If a key document is not exhibited because of concerns over volume or

confidentiality, “The judge to whom application for disclosure is made
must then rule on whether, and to what extent, disclosure should be
made” (Lord Bingham, para 4).

• It should not be necessary for the claimant, seeking sight of a key

document summarised in the defendant’s evidence “to suggest some
inaccuracy or incompleteness in the summary” as this is “usually an
impossible task without sight of the document” and “ it is enough that
the document itself is the best evidence of what it says” (Lord
Bingham, para 4).

• Applications for specific disclosure in judicial review claims are

“likely to increase in frequency, since human rights decisions under the
Convention tend to be very fact-specific and any judgment on the
proportionality of a public authority’s interference with a protected
Convention right is likely to call for a careful and accurate evaluation
of the facts” (Lord Bingham, para 3).

• “A more flexible and less prescriptive principle, which judges the need
for disclosure in accordance with the requirements of the particular
case, taking into account the facts and circumstances” should be
substituted for the pre-existing “approach to disclosure in judicial
review which is more narrowly confined than in actions commenced

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by writ” and the “restrictive rule” on which this approach is based

whereby disclosure aimed at challenging the accuracy of affidavit
evidence is refused as improper “unless there is some prima facie case
for suggesting that the evidence relied upon by the deciding authority
is in some respects incorrect or inadequate” (Lord Carswell, paras 29
and 32; Lord Brown, para 56).

• “On this [new] approach the courts may be expected to show a

somewhat greater readiness than hitherto to order disclosure of the
main documents underlying proportionality decisions, particularly in
cases where only a comparatively narrow margin of discretion falls to
be accorded to the decision-maker” (Lord Brown, para 57).

• The test will remain “whether, in the given case, disclosure appears to
be necessary in order to resolve the matter fairly and justly” and
“whether it is necessary for fairly disposing of the case to order
disclosure of such documents” (Lord Bingham, para 3; Lord Carswell,
para 38).

2.4 Orders for disclosure to remain exceptional

• Having said this, the need for disclosure “will not arise in most
applications for judicial review, for they generally raise legal issues
which do not call for disclosure of documents” and “for this reason the
courts are correct in not ordering disclosure in the same routine manner
as it is given in actions commenced by writ. Even in cases involving
issues of proportionality disclosure should be carefully limited to the
issues which require it in the interests of justice” (Lord Carswell, para
32).

• Orders for disclosure will not be “automatic” even in proportionality

cases (Lord Bingham, para 3; Lord Carswell, para 38).

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• Orders for disclosure “are likely to remain exceptional in judicial

review proceedings, even in proportionality cases, and the courts
should continue to guard against what appear to be merely ‘fishing
expeditions’ for adventitious further grounds of challenge” (Lord
Brown, para 56).

• The specific context of Tweed should also be borne in mind more

generally:

(a) the House of Lords was considering the disclosure of key

documents which were central to the decision and which would
have been disclosed but for a concern over the protection of
police informants;

(b) their Lordships were therefore dealing with a somewhat

unusual situation;

(c) the court only ordered disclosure to the first instance judge so
that he or she could determine whether the documents in fact
added anything to the affidavit evidence and therefore needed
to be seen by the claimant.

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3. DISCHARGING THE DUTY OF CANDOUR

3.1 The truth, the whole truth & nothing but the truth

• R v Secretary of State for the Home Department, ex p Fayed [1998] 1

WLR 763 (CA):
On an application for judicial review there is usually no
discovery because discovery should be unnecessary because it
is the obligation of the respondent public body in its evidence to
make frank disclosure to the court of the decision making
process (Woolf MR at p 775).

• Secretary of State for Foreign and Commonwealth Affairs v Quark

Fishing Ltd [2002] EWCA Civ 1409 (CA):
…there is no duty of general disclosure in judicial review
proceedings. However there is – of course – a very high duty on
public authority respondents, not least central government, to
assist the court with full and accurate explanations of all the
facts relevant to the issue the court must decide. The real
question here is whether in the evidence put forward on his
behalf the Secretary of State has given a true and
comprehensive account of the way the relevant decisions in the
case were arrived at (Laws LJ at para 50).

• Belize Alliance of Conservation NGOs v Department of the

Environment [2004] UKPC 6, [2004] Env LR 761 (PC):
It is now clear that proceedings for judicial review should not
be conducted in the same manner as hard-fought commercial
litigation. A respondent authority owes a duty to the court to
cooperate and to make candid disclosure, by way of affidavit,
of the relevant facts and (so far as they are not apparent from
contemporaneous documents which have been disclosed) the
reasoning behind the decision challenged in the judicial review
proceedings (Lord Walker at para 86).

• R (Banks) v Secretary of State for Environment, Food and Rural

Affairs [2004] EWHC 1031 (Admin):
…the duty of candour upon a public authority engaged in
judicial review proceedings does not necessarily require it to
disclose every relevant document. If the facts are fairly and
accurately summarised in a departmental witness statement

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then it should not be necessary to exhibit the supporting

documents simply on the belt and braces basis. However, the
underlying duty is one of candour. It is no accident that
witnesses promise not merely to tell the truth and nothing but
the truth, they also promise to tell the whole truth. Frank
disclosure of the decision making process does not mean
referring to so much of the truth as assists the public body's
case. It means presenting the whole truth, including so much of
the truth as assists the applicant for judicial review (Sullivan J
at paras 10-11).

• R (Wandsworth LBC) v Secretary of State for Transport [2005] EWHC

20 (Admin):
…the Administrative Court relies upon such witnesses,
especially those representing government departments, to
present the background facts in a comprehensive and
dispassionate manner... It is most important that officials
providing witness statements on behalf of public bodies, in
particular government departments, in judicial review
proceedings, should remember that their obligation to tell the
truth to the court does not mean that the court need only be told
so much of the truth as suits the department’s case, and that
inconvenient parts of the truth may be omitted from their
evidence. In Court, a witness is not merely obliged to tell the
truth and nothing but the truth, but also to tell the whole truth.
A statement that is only partially true is as capable of being
misleading as a statement that is untrue (Sullivan J at para
250).

• The duty of candour extends to disclosures which will assist the

claimant’s case and/or give rise to additional (and otherwise unknown)
grounds of challenge (R v Barnsley MBC, ex p Hook [1976] 1 WLR
1052 (CA) at p 1058 Denning MR).

• The level of disclosure required under the duty of candour will vary
depending on the context and the step being taken but the duty applies
at every stage of the proceedings including:

(a) letters of response under the judicial review pre-action

protocol;

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(b) acknowledgments of service and summary grounds of

resistance;

(c) detailed grounds of resistance and witness statements;

(d) counsel’s written and oral submissions.

3.2 Plain English

• A corollary of the need to reveal the truth, the whole truth and nothing
but the truth is the need to avoid anything evasive or misleading, the
inclusion of spin or “Yes, Minister” style double-speak.

• Re Downes’ Application [2006] NIQB 77:

The affidavits of all parties should be drafted in clear
unambiguous language. The language must not deliberately or
unintentionally obscure areas of central relevance and
draftsmen should look carefully at the wording used in any
draft to ensure that it does not contain any ambiguity or is
economical with the truth of the situation. There can be no
place in affidavits in judicial review applications for what in
modern parlance is called spin. Public bodies and central
government agencies… must present their cases
dispassionately and in the public interest (Girvan J at para 31).

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3.3 Exhibits

• Unless there is a good reason for doing otherwise, key documents

should always be exhibited to a defendant’s witness statement (see
Tweed v PCNI [2006] UKHL 53, [2007] 2 WLR 1 (HL), Lord
Bingham at para 4, Lord Brown at para 56 and Lord Carswell at para
39 as referred to at 2.2 above).

• Note the disapproval of the “policy of non-production” of submissions

to ministers in R (National Association of Health Stores) v Secretary of
State for Health [2005] EWCA Civ 154, Sedley LJ at para 49.

• Even where documents are summarised in a witness statement and not

exhibited, CPR, Part 31.14 provides that “a party may inspect a
document mentioned in (a) a statement of case; (b) a witness statement;
(c) a witness summary; or (d) an affidavit”.

• It may be arguable that documents “mentioned” in exhibits are also

covered by this rule (see Dubai Bank Ltd v Galadari (No 2) (1989)
“The Times” 11 December, Morritt J (on appeal [1990] 1 WLR 731
(CA)) and Hunter v Dublin, Wicklow and Wexford Railway Co (1891)
28 IrR 489).

• Note, however, that: disclosure on this basis was refused under the
analogous provision in RSC, Ord 24 in R v Inland Revenue
Commissioners, ex p Taylor [1989] 1 All ER 906 (CA) and R v
Secretary of State for Health, ex p Hackney LBC [1994] COD 432
(DC) and [1995] COD 80 (CA); and the point was not decisive in
Tweed v PCNI [2006] UKHL 53, [2007] 2 WLR 1 (HL).

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3.4 The dangers of revealing too little

• Failure properly to discharge the duty of candour will almost always, if

discovered, elicit public judicial condemnation (see, eg Secretary of
State for Foreign and Commonwealth Affairs v Quark Fishing Ltd
[2002] EWCA Civ 1409 (CA), Laws LJ at paras 49-55, R (Banks) v
Secretary of State for Environment, Food and Rural Affairs [2004]
EWHC 1031 (Admin), Sullivan J at paras 10-11, R (Wandsworth LBC)
v Secretary of State for Transport [2005] EWHC 20 (Admin), Sullivan
J at para 250, R (Gillan) v Commissioner of Police of the Metropolis
[2004] EWCA 1067, [2005] QB 388 (CA), at para 54 and R (Karas) v
Secretary of State for the Home Department [2006] EWHC 747
(Admin), Munby J at paras 53-57).

• Beyond this, the consequences can include:

(a) a formal order for disclosure to remedy the perceived defect

(see R (Quark Fishing Ltd) v Secretary of State for Foreign and
Commonwealth Affairs [2001] EWHC 920 (Admin));

(b) the drawing of adverse evidential inferences, as to which see R

(Karas) v Secretary of State for the Home Department [2006]
EWHC 747 (Admin), Munby J at paras 63-65, 80-84 and 94
and Secretary of State for Foreign and Commonwealth Affairs v
Quark Fishing Ltd [2002] EWCA Civ 1409 (CA):
If the court has not been given a true and
comprehensive account, but has had to tease the truth
out of late discovery, it may be appropriate to draw
inferences against the Secretary of State upon points
which remain obscure (Laws LJ at para 50);

(c) a costs penalty (see R (Wandsworth LBC) v Secretary of State

for Transport [2005] EWHC 20 (Admin), Sullivan J at para 71
of the post-judgment discussion);

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(d) proceedings for contempt of court, as to which see Re Downes’

Application [2006] NIQB 79:
The letter of 5 January 2006 was in response to a
solicitor’s letter written in the context of a likely judicial
review challenge. If incorrect and misleading
information was deliberately given to put the applicant
on a false trail then prima facie that conduct would
appear to fall within the concept of perverting the
course of justice. If, in the course of the substantive
judicial review itself, there was a deliberate attempt to
mislead the court the same would be true… The
Attorney General thus has the function of protecting the
due administration of justice. I consider the proper
course for this court to take is to refer the papers to him
to decide what, if any, steps should be taken in the
matter in the light of all the circumstances and in the
light of all the papers before the court and any
documents to which neither the court nor the applicant
has access (Girvan J at paras 5 and 7).

• A more long-term consequence could ultimately be a breakdown of

trust between the judiciary and the executive and a switch away from
reliance on the duty of candour to a disclosure-based system, see Re
Downes’ Application [2006] NIQB 77:
The judicial restraints on matters such as discovery and cross-
examination would not long survive if lack of frankness and
openness were to become commonplace in judicial review
applications (Girvan J at para 31).

3.5 Is it possible to reveal too much?

• It is nevertheless important to guard against over-inclusion when

giving “full and fair disclosure” of a decision’s background:

(a) the court continues to express concerns about being over-

burdened with excessive and unnecessary information and
materials, as to which see Tweed v PCNI [2006] UKHL 53,
[2007] 2 WLR 1 (HL):

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It is not helpful, and is often both expensive and time-

consuming, to flood the court with needless paper (Lord
Brown, para 56);

(b) the inclusion of truly irrelevant material could be taken as a

concession of its relevance and/or prompt unnecessary
tangential evidence in reply.

• Although unlikely, excessively over-detailed defence disclosure or

evidence could elicit judicial censure and/or a costs discount or
penalty.

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4. DEALING WITH APPLICATIONS FOR DISCLOSURE

4.1 When will formal disclosure be ordered?

• O’Reilly v Mackman [1983] 2 AC 237 (HL):

Discovery of documents (which may often be a time-consuming

process) is not automatic as in an action begun by writ, but
otherwise Order 24 applies to it and discovery is obtainable
upon application whenever, and to the extent that, the justice of
the case requires... It may well be that... it will only be on rare
occasions that the interests of justice will require that leave be
given for cross-examination of deponents on their affidavits in
applications for judicial review. This is because of the nature of
the issues which normally arise upon judicial review. The
facts… can seldom be a matter of relevant dispute upon an
application for judicial review, since the tribunal or authority’s
findings of fact, as distinguished from the legal consequences of
the facts that they have found, are not open to review by the
court in the exercise of its supervisory powers except on the
principles laid down in Edwards v Bairstow (Lord Diplock at
pp 282-283).

• R v Inland Revenue Commissioners, ex p National Federation of Self-

Employed and Small Businesses Ltd [1982] AC 617 (HL):
Upon general principles, discovery should not be ordered
unless and until the court is satisfied that the evidence reveals
reasonable grounds for believing that there has been a breach
of public duty; and it should be limited strictly to documents
relevant to the issue which emerges from the affidavits (Lord
Scarman at p 654).

• Disclosure may be ordered, if necessary in the interests of justice etc,

where the applicant can show a basis for challenging an apparent
inaccuracy or incorrectness in the defendant’s evidence or as a means
of supplementing incomplete, partial or inadequate defence evidence
(R v Secretary of State for the Environment, ex p Islington LBC &
London Lesbian and Gay Centre [1997] JR 121 (CA) (decision dated
19 July 1991, not reported fully at the time although see [1992] COD
67) (Dillon LJ at p 124).

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• R v Arts Council for England, ex p Women’s Playhouse Trust [1998]

COD 175:
the court will not order discovery to test the truth of an
affidavit’s contents unless there is material which alerts the
court to a real possibility that the affidavit is inaccurate or in
material respects incomplete (Laws J).

• In the light of Tweed v PCNI [2006] UKHL 53, [2007] 2 WLR 1 (HL)
(see 2.3-2.4 above), the test remains whether disclosure is necessary in
order to resolve the matter fairly and justly (Lord Bingham, para 3;
Lord Carswell, para 38) and orders for disclosure will continue to be
the exception rather than the rule but the following point can now be
added:

o in relation to key documents, particularly where the relevant

decision is challenged on human rights / proportionality
grounds, showing incorrectness, inaccuracy or incompleteness
in the defendant’s evidence is not a pre-requisite to an order for
disclosure (Lord Bingham, para 4).

• The following questions are therefore likely to be critical in relation to

any application for disclosure:

(a) Will disclosure help resolve a material issue of fact / factual

dispute going to an arguable ground for judicial review?

(b) Will disclosure help save or increase costs?

(c) Is there a reason (eg apparent incorrectness / incompleteness)

for doubting the defendant’s evidence?

(d) Is the claimant on a fishing expedition?

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• Disclosure is thus more likely to be ordered where the following are in

issue:

(a) the procedural fairness of a consultation exercise or decision

making process;

(b) whether the decision maker took into account all relevant and
no irrelevant considerations;

(c) the existence of a past practice or representation giving rise to a

legitimate expectation;

(d) the existence of a precedent fact which is a pre-condition to the

legality of a particular outcome;

(e) the proportionality or ECHR compatibility of a decision (see R

v Ministry of Defence, ex p Smith [1996] QB 517 (CA),Henry
LJ at p 564 and Tweed v PCNI [2006] UKHL 53, [2007] 2
WLR 1 (HL)).

• Conversely, disclosure is less likely to be ordered where the following

are in issue:

(a) the legality / rationality of a particular outcome;

(b) the adequacy of reasons.

• A supplementary witness statement dealing with the subject matter of a

request for disclosure may pre-empt a formal order for disclosure.

• Where disclosure is ordered it will almost always be limited to

“specific” rather than “standard” disclosure (see 4.2 below).

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4.2 Disclosure: ordinary & technical meanings

• CPR, Part 31 “sets out rules about the disclosure and inspection of
documents” and applies in judicial review proceedings where the court
orders a formal disclosure and inspection exercise. See also the
accompanying Practice Direction.

• In ordinary language, requests for voluntary “disclosure” seek the

provision of information and/or copy documents.

• Under the CPR, “disclosure” is a two-stage process entailing

“disclosure” by list which in turn gives rise to a consequent right to
“inspect”, and to be supplied with copies of, the documents listed.
CPR, Part 31.2: Meaning of disclosure
A party discloses a document by stating that the document
exists or has existed.

CPR, Part 31.3: Right of inspection of a disclosed document

(1) A party to whom a document has been disclosed has a
right to inspect that document except where-
(a) the document is no longer in the control of the
party who disclosed it;
(b) the party disclosing the document has a right or
a duty to withhold inspection of it; or
(c) paragraph (2) applies.

• It is therefore important to be clear, particularly in correspondence,

whether the term “disclosure” is being used in its ordinary or technical
sense.

4.3 The mechanics of disclosure

• An order to give disclosure is an order to give standard disclosure

unless the court directs otherwise (CPR, Part 31.5).

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• “Standard disclosure” does not extend to “relevant” background

documents which do not support or undermine anyone’s case or
Peruvian Guano “train of inquiry” documents.
CPR, Part 31.6: Standard disclosure – what documents are to
be disclosed
Standard disclosure requires a party to disclose only-
(a) the documents on which he relies; and
(b) the documents which-
(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case; and
(c) the documents which he is required to disclose
by a relevant practice direction.

• Standard disclosure entails a duty to undertake a “reasonable search”

and to make it clear where categories or classes of document have not
been searched for on grounds of unreasonableness (CPR, Part 31.7).

• When disclosure is ordered in judicial review proceedings it is much

less likely to take the form of standard disclosure and much more
likely to involve specific disclosure under CPR, Part 31.12 (see also
the CPR, Part 31, PD, paras 5.1-5.5).
(2) An order for specific disclosure is an order that a party
must do one or more of the following things –
(a) disclose documents or classes of documents
specified in the order;
(b) carry out a search to the extent stated in the
order;
(c) disclose any documents located as a result of
that search.

4.4 Withholding disclosure & inspection

• Refusing voluntary “disclosure” is just a question of saying “no”.

• Once an obligation to give “disclosure” under a court order has arisen,

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the CPR, Part 31.19 provides a mechanism for making “claims to

withhold inspection or disclosure of a document”:

(a) In extremely rare cases, a without notice application can be

made for permission to withhold disclosure of a document (on
PII grounds only) under the CPR, Part 31.19(1). Such
permission allows for documents to be excluded from the
relevant list of documents altogether.

(b) More usually, the existence of the document is disclosed but

inspection is then prevented in whole or in part. In such cases,
the grounds for withholding inspection should be stated in
writing and inspection should be refused. It is then up to the
other party or parties to challenge this under the CPR, Part
31.19(5).

• Where documents are privileged or subject to PII, they can be

“disclosed” by being listed under a description that is sufficiently
vague and/or compendious to preserve the information contained
therein.

• Confidentiality is not itself a ground for withholding disclosure or

inspection although related arguments can influence the exercise of the
court’s discretion and may form the basis of a PII claim or a claim that
disclosure would breach a third party’s rights under the ECHR, art 8.
See Science Research Council v Nassé [1980] AC 1028 (HL):
There is no principle in English law by which documents are
protected from discovery by reason of confidentiality alone. But
there is no reason why, in the exercise of its discretion to order
discovery, the [court] should not have regard to the fact that
the documents are confidential, and that to order disclosure
would involve a breach of confidence (Lord Wilberforce at
1065).

• Where confidential material is disclosable it may be appropriate to

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consult the third party in question to see whether they would wish to
consent, object or have their interests considered by the court (see:
Woolgar v Chief Constable of Sussex Police [2000] 1 WLR 25 (CA),
Kennedy LJ at p 37; Soden v Burns [1996] 1 WLR 1512, Robert
Walker J at p 1529; Marcel v Commissioner of Police of the
Metropolis [1992] Ch 225 (CA), Dillon LJ at p 259; A Health
Authority v X [2001] EWCA Civ 2014, [2002] 2 All ER 780 (CA); R
(Kent Pharmaceuticals Ltd) v Serious Fraud Office [2004] EWCA Civ
1494, [2005] 1 WLR 1302 (CA); R (TB) v Stafford Combined Court
[2006] EWHC 1645 (Admin), [2007] 1 All ER 102).

• Disclosure (very rarely) and inspection (more commonly) may be

withheld on the following grounds:

(a) Statutory bar / prohibition.

(b) Legal professional privilege:

(i) “advice privilege” covering confidential lawyer/client

communications connected with giving or obtaining
legal advice - privileged whether or not litigation
contemplated or pending;

(ii) “litigation privilege” covering confidential

lawyer/client, lawyer/agent and lawyer/third-party
communications for the sole or dominant purpose of
legal proceedings - privileged only if coming into
existence after litigation contemplated or pending.

NB. “the government should not claim LPP where it is apparent

that to do so would prevent the court reaching a result that is
fair and in the overall public interest” (Treasury Solicitor’s
Guidance Note “Legal Professional Privilege in Civil

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Proceedings: Guidance for Government Lawyers” dated

September 1999, para 9).

(c) Without prejudice privilege.

(d) Public interest immunity.

(i) Is the material disclosable?

(ii) If so, does it attract PII because the disclosure of its

contents would cause serious harm or real damage to the
public interest?

(iii) If so, is the public interest in disclosure for the purposes

of doing justice in the proceedings outweighed by the
public interest in non-disclosure?

See: the statements made in the House of Lords and the House
of Commons on 18 December 1996 and endorsed by the
present administration in a Written Answer dated 11 July 1997;
current HMG guidance on PII.

(e) Relevance. If not itself relevant, confidential or sensitive

information can be redacted from disclosable documents before
inspection provided this does not destroy the meaning or
coherence of those documents (GE Capital Corporate Finance
Group v Bankers Trust Co [1995] 1 WLR 172 (CA)).

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5. PRACTICAL POINTS

5.1 Client expectations

• Defendants occasionally take the absence of a formal disclosure

exercise and the general “feel” of the duty of candour as a signal that
there is some “room for manoeuvre” when it comes to disclosure in
judicial review proceedings, ie they can relax somewhat, the contents
of their files are “safe”, there is no need to search high and low for
documents, there is scope for cherry picking key materials for the court
etc.

• While the disclosure of documents is unlikely to be an issue in most

judicial reviews and it is important not to alarm clients unnecessarily, it
is sometimes necessary to ensure that they do not get a false
impression as to the seriousness or extent of the duty of candour.

5.2 Advantages of a formal approach

• Particularly in circumstances where a significant amount of material is

being disclosed, there are even some advantages to a more formal and
disciplined approach to the hand-over of documents, ie one which
follows the disclosure / inspection mechanics of the CPR, Part 31:

(a) the duty to disclose is expressly stated to extend to documents

which have been (but are no longer) in the disclosing party’s
control (CPR, Part 31.8);

(b) the duty to disclose is expressly stated to continue until the

proceedings are concluded (a point which can become
important if further materials are acquired or discovered or if,
as often happens in judicial review, the shape and scope of the

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issues in dispute expands or changes at a later date) (CPR, Part

31.11);

(c) the two-stage (ie list and then inspection) sequence ensures
clarity over, and gives the other party the opportunity to
challenge, the extent of the search undertaken, the fate of any
documents which are no longer in the disclosing party’s control
and the grounds upon which any material is being withheld
(CPR, Parts 3.10 and 3.19);

(d) the need for someone to sign a “disclosure statement” (under

threat of contempt proceedings) setting out the extent of the
search and certifying that the duty to disclose has been
understood and carried out also serves to focus minds (CPR,
Part 3.10 and 3.23 and PD, part 4 and Annex);

(e) disclosure under a court order is much more clearly privileged

against third party complaints that it involved a libel or breach
of confidence or was otherwise ultra vires; and

(f) disclosure under a court order expressly engages the CPR, Part
31.22 on the collateral use of disclosed materials (defendants
should equally be advised about passing on or using material
disclosed to them contrary to the CPR, Part 31.22).

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6. CONCLUSION

• There does appear to be a general trend towards a more exacting and

liberal approach to disclosure in judicial review proceedings.

• Against this, there is also an entrenched judicial reluctance to see many

more materials routinely introduced in claims for judicial review.

• More detail on the cases where disclosure has been granted and
refused, the evidence of a trend generally and the possible reasons for
it can be found in my article “The Disclosure of Documents in Claims
for Judicial Review” [2006] JR 194.

• Formal disclosure is unlikely to become common place in relation to

judicial reviews of routine immigration, asylum, housing, planning and
social security decisions because the defendant will rarely have
anything to disclose that it is not before the court in any event.

• However, there is a potential for the use of disclosure (and requests for
further information) to become more important in relation to judicial
reviews of larger decisions and policy issues such as those relating to,
eg, the location of a new London airport or the decision to liquidate
Railtrack.

• The more recent (ie post-CPR) cases where disclosure has been
granted tend to show that targeted applications are more likely to
succeed and harder to resist.

OLIVER SANDERS
1 CROWN OFFICE ROW
21 MARCH 2007

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ANNEX A:
TWEED v PCNI [2006] UKHL 53, [2007] 2 WLR 1 (HL) - KEY PASSAGES

Lord Bingham
3. In the minority of judicial review applications in which the precise facts are
significant, procedures exist in both jurisdictions, as my noble and learned friends
explain, for disclosure of specific documents to be sought and ordered. Such
applications are likely to increase in frequency, since human rights decisions under
the Convention tend to be very fact-specific and any judgment on the proportionality
of a public authority’s interference with a protected Convention right is likely to call
for a careful and accurate evaluation of the facts. But even in these cases, orders for
disclosure should not be automatic. The test will always be whether, in the given case,
disclosure appears to be necessary in order to resolve the matter fairly and justly.
4. Where a public authority relies on a document as significant to its decision, it
is ordinarily good practice to exhibit it as the primary evidence. Any summary,
however conscientiously and skilfully made, may distort. But where the authority’s
deponent chooses to summarise the effect of a document it should not be necessary for
the applicant, seeking sight of the document, to suggest some inaccuracy or
incompleteness in the summary, usually an impossible task without sight of the
document. It is enough that the document itself is the best evidence of what it says.
There may, however, be reasons (arising, for example, from confidentiality, or the
volume of the material in question) why the document should or need not be exhibited.
The judge to whom application for disclosure is made must then rule on whether, and
to what extent, disclosure should be made.

Lord Carswell
29. The courts in both jurisdictions [ie England and Wales and Northern Ireland]
developed over a series of decisions an approach to disclosure in judicial review
which is more narrowly confined than in actions commenced by writ. The basis of this
approach is that disclosure should be limited to documents relevant to the issues
emerging from the affidavits... In building upon this foundation the courts developed a
restrictive rule, whereby they held that unless there is some prima facie case for
suggesting that the evidence relied upon by the deciding authority is in some respects
incorrect or inadequate it is improper to allow disclosure of documents, the only
purpose of which would be to act as a challenge to the accuracy of the affidavit
evidence...
32. ... I do consider, however, that it would now be desirable to substitute for the
rules hitherto applied a more flexible and less prescriptive principle, which judges the
need for disclosure in accordance with the requirements of the particular case, taking
into account the facts and circumstances. It will not arise in most applications for
judicial review, for they generally raise legal issues which do not call for disclosure
of documents. For this reason the courts are correct in not ordering disclosure in the
same routine manner as it is given in actions commenced by writ. Even in cases
involving issues of proportionality disclosure should be carefully limited to the issues
which require it in the interests of justice.

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38. ... The proportionality issue forms part of the context in which the court has to
consider whether it is necessary for fairly disposing of the case to order disclosure of
such documents. It does not give rise automatically to the need for disclosure of all
the documents. Whether disclosure should be ordered will depend on a balancing of
the several factors, of which proportionality is only one, albeit one of some
significance...
39. When one takes into account the proportionality factor, the need for disclosure
is greater than in judicial review applications where it does not apply. The duty of
candour has been fulfilled by adduction of summaries of the police report, authorised
officers’ reports and other documents, and the appellant’s counsel did not suggest
that there had been any deficiency in candour in putting that evidence before the
court. He submitted, however, that it is not always possible to obtain the full flavour
of the content of such documents from a summary, however carefully and faithfully
compiled, and that there may be nuances of meaning or nuggets of information or
expressions of opinion which do not fully emerge in a summary. I consider that there
is force in this view and that in order to assess the difficult issues of proportionality in
this case the court should have access as far as possible to the original documents
from which the Commission received information and advice.

Lord Brown
56. This then is the general framework within which applications for disclosure in
judicial review should be considered. In my judgment disclosure orders are likely to
remain exceptional in judicial review proceedings, even in proportionality cases, and
the courts should continue to guard against what appear to be merely “fishing
expeditions” for adventitious further grounds of challenge. It is not helpful, and is
often both expensive and time-consuming, to flood the court with needless paper. I
share, however, Lord Carswell’s (and, indeed, the Law Commission’s) view that the
time has come to do away with the rule that there must be a demonstrable
contradiction or inconsistency or incompleteness in the respondent’s affidavits before
disclosure will be ordered. In future, as Lord Carswell puts it, “a more flexible and
less prescriptive principle” should apply, leaving the judges to decide upon the need
for disclosure depending on the facts of each individual case.
57. On this approach the courts may be expected to show a somewhat greater
readiness than hitherto to order disclosure of the main documents underlying
proportionality decisions, particularly in cases where only a comparatively narrow
margin of discretion falls to be accorded to the decision-maker (a fortiori the main
documents underlying decisions challenged on the ground that they violate an
unqualified Convention right, for example under article 3). That said, such occasions
are likely to remain infrequent: respondent authorities under existing practices
routinely exhibit such documents to their affidavits (and, indeed, should be readier to
do so whenever proportionality is in issue). Take this very case. But for the important
matter of confidentiality arising in respect of these particular documents, it seems to
me almost inevitable that they would have been exhibited, not least because that
would have been simpler than summarising them. Without his having seen them,
however, one can readily understand the appellant’s concern that their effect may
have been unwittingly distorted.

© Oliver Sanders