The duty of candour is a well-established principle in judicial review proceedings. It requires public bodies to defend public law litigation in a manner that is upfront, transparent and “with all cards face upwards on the table”[1]. Public bodies are expected to assist the court by providing all facts and materials relevant to the issues before the court. Mr Justice Barniville has confirmed that the duty is “imposed on public bodies in judicial review proceedings”.[2]
The duty of candour arises in the context of public law litigation, requiring particularly that “in judicial review proceedings a respondent should disclose to the court all the materials in its possession which were relevant to the decision sought to be impugned”.[3] The duty applies to all public bodies and exists to aid the court in assessing the claim and, partially also, it has been suggested, with the objective to “improve standards in public administration”.[4] Public bodies should be aware that there is “a very high duty” to provide the court with full facts and materials relevant to the issue. This has been expressed as relating to a partnership-type relationship between the courts and public bodies.[5]
It is not for a public body to make an applicant’s case for them. As always, the burden is on the applicant to satisfy the court of their entitlement to judicial review. It is for the respondent public body to resist such an application if it considers it to be unjustified. However, the duty of candour suggests that this “… 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.”[6]
The duty will arise at all stages of judicial review proceedings, including affidavit evidence and discovery. Public bodies have been advised by the court to “err on the side of caution in giving the court any information which might reasonably be considered as being potentially relevant”.[7] In practical terms, public bodies should, within reason, take a liberal approach when determining what information should be shared during the discovery process. Public bodies have been criticised where the court has felt they have fallen short on this duty, with a judge remarking in one instance that “withholding relevant information from the Court is not a good look”.[8]
Next steps
Public bodies should be aware of the duty of candour when defending public law litigation. They should seek legal advice when considering what evidence and documentation needs to be put before the court in order to ensure compliance with the duty. Public bodies will need to be mindful of any other legal duties to protect or withhold information, such as may arise regarding personal data or confidential or commercially sensitive information. However, they will also need to be vigilant in disclosing all relevant information in the proceedings before the court.
Public bodies must recognise that a high standard of disclosure applies, and that an overly restrictive or conservative approach to information and/or document disclosure may result in that standard not being attained, and the duty of candour potentially being breached. While the consequences remain to be developed further, it has been suggested that a court might, for example, draw adverse inferences against bodies in breach of the duty on any points that remain obscure in the proceedings owing to the breach of the duty concerned[9].
[1] RAS Medical Limited T/A Parkwest Clinic v Royal College of Surgeons in Ireland [2019] IESC 4, quoting Lord Donaldson MR in R v Lancashire CC ex p. Huddleston [1986] 2 AER 941
[2] Cork Harbour Alliance for a Safe Environment v An Bord Pleanála [2019] IEHC 85
[3] O’Neill v Governor of Castlerea Prison [2004] 1 I.R. 298
[4] Murtagh v Kilrane [2017] IEHC 384
[5] Murtagh v Kilrane [2017] IEHC 384, citing R v Lancashire CC ex p. Huddleston [1986] 2 AER 941
[6] Lord Donaldson MR in R v Lancashire CC ex p. Huddleston [1986] 2 AER 941
[7] Garda Representative Association v Minister for Public Expenditure and Reform [2018] IESC 4
[8] Shao v Minister for Justice and Equality (No. 2) [2020] IEHC 68, per Humphreys J
[9]
Murtagh v Kilrane [2017] IEHC 384
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