The recent case of R (on the application of Mohammad Shahzad Khan) v Secretary Of State for the Home Department [2016] EWCA Civ 416 provides useful guidance on the ambit of the duty of candour owed by a party submitting documentary evidence to the court.

Since the ordinary rules of disclosure do not apply in judicial review proceedings, the parties are instead subject to a "duty of candour" to provide the court with all relevant facts and material needed to fairly and justly determine the relevant issues. In this case the Court of Appeal considered the question of whether the mere disclosure and furnishing of documents discharges the duty of candour.

Key Points:

  • The Court of Appeal confirmed that a claimant in judicial review, or any party making an application connected with judicial review proceedings, must ensure that judges have a complete view of the evidence. This may require more than the mere furnishing of a document.
  • The Court of Appeal held that the duty of candour obliges the parties to draw its attention to the significance of a document where such significance has not been identified, even if the document is adverse to their case.

1. BACKGROUND

In 2012, K applied for indefinite leave to remain in the UK on the basis of completing 14 years' continuous residence. The secretary of state refused K's application on the basis that he had not provided any official documents to support his claim of continued residence. K sought judicial review of this decision. The judicial review claim was dismissed and K obtained permission to appeal.

The judicial review bundle contained K's work permit application, and a letter from his employer, D, stating that he has been the employer's tenant between 1998 and 2005. This contradicted K's work permit application, according to which he was in Pakistan until 2002. However, the contradiction between the documents was not brought to the attention of Sullivan LJ, who granted permission to appeal, by either of the parties. The Secretary of State argued that the permission to appeal should be set aside as K had breached his duty of candour by not bringing Sullivan LJ's attention to the contradiction. K claimed that there was no breach of the duty as the documents were included in the disclosure bundle provided to the Court and the Secretary of State.

2. THE COURT OF APPEAL DECISION

The Court referred to the disclosure required to support a without notice application for an injunction, as well as applications in the Commercial Court or the Chancery Division for freezing injunctions or permission to serve out of the jurisdiction. It observed that in all these instances, it is insufficient to merely disclose the documents, and that there is a duty to provide the judge with all the points that tell against the grant of the relief sought.

Beatson LJ observed that while these instances provide general guidance regarding the duty of candour, the circumstances described above are different from permission to apply for judicial review and applications for permission to appeal. He observed that in applications for permission before the Court of Appeal the respondents are well aware of the application and materials relied on by the applicant.

Despite the difference, the Court held that claimants in judicial review also have a duty to ensure that the court has a complete understanding of the relevant evidence, and this may involve more than the mere furnishing of such documents during disclosure. The position is the same for claimants applying for permission to appeal. Practically, in document heavy cases, it would not suffice for the claimant to provide "a pile of undigested documents" with little or no explanation of the evidence to the Court. However, the Court also observed that it would consider whether the failure to disclose was innocent, in the sense that the party disclosing the document did not fully understand its significance.

It was also confirmed that the provision in CPR 54.8, which requires a defendant in judicial review proceedings to file an acknowledgment of service and summary grounds, cannot justify a claimant taking a more relaxed view of the duty of candour. Usually, it would not be open to the claimant to rely on the fact that in the acknowledgment of service, the respondent did not point to any contradiction. However, in particular circumstances, the claimant might be able to rely on the failure of the respondent.

The Court observed that while K's solicitors were not aware of the contradiction in K's application, K himself was aware. Neither K nor his employer D, had provided a witness statement to explain the discrepancy. The Court inferred that K had based his applications for residence, for judicial review and for permission to appeal on a false factual basis. The Court therefore set aside the permission to appeal granted to K by Sullivan LJ.

3. COMMENTS

In circumstances where there is a clear breach of the duty of candour by the claimant, this case provides useful guidance on the factors that may be taken into consideration by the Court. Although set in the immigration context, this case has particular relevance for commercial judicial review cases where documentary evidence is often voluminous. The practical implication of this decision is that parties making applications connected to a judicial review cannot "bury" a document adverse to their case within volumes of other documents during the disclosure process, without risking breaching their duty of candour. The party must point the judge to all parts of the material evidence and draw the attention of the judge to the significance of a document, even when such a document is adverse to their case. Further, since the duty of candour is a continuing duty, if the party or its lawyers become aware of any adverse evidence at any stage of the proceedings that should be brought to the attention of the Court.