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Judiciary consults on Defendant and Claimant Duty of Candour and Disclosure in Judicial Review Proceedings

A consultation on amendments to the practice direction on duty of candour in judicial review proceedings has been launched by the judiciary. The consultation paper has been prepared by Lewis and Cranston JJ. The headline refers to the Defendant’s duty of candour but in fact very little indeed is proposed on that front. The paper does, though, propose a major change to the practice direction on Claimant duty of candour, though…

The Lord Chief Justice has issued a Discussion Paper by Mr Justice Cranston and Mr Justice Lewis, which considers the defendant’s duty of candour and disclosure in judicial review proceedings.

The Discussion Paper proposes reforms to CPR Practice Direction 54A in order to:

  • clarify the general position governing the defendant’s duty of candour and to ensure it more closely reflects the existing case law;
  • make provision for a specific directions procedure; and
  • provide guidance in respect of the content of any acknowledgement of service filed by a defendant.

The LCJ has invited any comments on the Discussion Paper’s recommendations to be submitted by 21 July 2016. Comments can be sent to dutyofcandour@judiciary.gsi.gov.uk or by post to: Duty of Candour Consultation, Master of the Rolls’ Private Office, Royal Courts of Justice, Strand, London WC2A 2LL.

In short, the proposal is to amend the relevant practice direction to provide:

12.2. A defendant should, in its detailed grounds or evidence, identify any relevant facts, and the reasoning, underlying the measure in respect of which permission to apply for judicial review has been granted

A similar, slightly more detailed change would be made to the provisions for acknowledgement of service. It is also proposed to set out a procedure in the Practice Direction whereby, after the provision of detailed grounds and evidence, a party can apply to the court for specific directions.

No explicit obligation on Defendants to disclose documents is proposed.

In contrast, a rather detailed obligation on claimants for judicial review is proposed in a new section of the practice direction:

Duty of Candour on Claimants and Applicants

5.11 Claimants seeking permission to apply for judicial review, urgent consideration or interim relief (whether by a claim included in the in the claim form itself or by a separate application notice) are under a duty of candour. That duty requires a claimant to ensure that the claim form, or any application notice, sets out all material facts, that is all those facts that are relevant to the claim or application relief being sought. A claimant is under a duty to make proper and necessary inquiries before seeking permission to apply for judicial review or seeking interim relief to ensure so far as reasonably possible that all relevant facts are known.

5.12 The duty of candour also requires claimants to refer to any relevant statutory provision, including any which may exclude the jurisdiction of the court to entertain the claim or application, or to grant the relief sought, and also to refer to any alternative appeal mechanism that exists, or could have been used prior to seeking judicial review.

Strange that this proposed change is not mentioned anywhere in the consultation title, on the consultation web page nor in the “introduction and summary” to the paper itself. It is only on page 6, in a slightly different and smaller font size, that the bit about claimants gets its first mention. A very odd way to encourage meaningful contributions from claimant lawyers.

Source: Courts and Tribunals Judiciary | Judiciary consults on the Defendant’s Duty of Candour and Disclosure in Judicial Review Proceedings

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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