R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs

The court considered two interlocutory applications made in pending judicial review claims arising from a Ministerial announcement of 16 November 2016: (1) an application for specific disclosure under Part 31 CPR; and (2) an application for further information under Part 18 CPR. The parties reached agreement on the outstanding requests and the court approved a draft order reflecting that agreement.

The court restated key legal principles relevant to disclosure in judicial review proceedings: disclosure is not automatic (see PD 54A), the proper test is whether disclosure is necessary to resolve the matter fairly and justly (Tweed), and fishing expeditions are not permitted. The decision emphasised the distinct duty of candour and co-operation owed by public authorities in judicial review proceedings (Huddleston; Belize Alliance) and that disclosure should not be selective or designed to overload the claimant.

The court noted specific legal issues raised in the underlying claims, including alleged unlawful fettering of discretion as to resettlement, proportionality and human rights issues (Art. 8 and Art. 1 of the First Protocol), failure to give adequate reasons, unfair consultation, irrationality concerning financial support, and breach of the public sector equality duty in s.149 Equality Act 2010; however, those substantive grounds remain to be determined at the substantive hearing.

This is an interlocutory Divisional Court hearing of two consolidated applications for specific disclosure (Part 31 CPR) and for further information (Part 18 CPR) in judicial review claims brought by the claimants challenging a Ministerial announcement of 16 November 2016. The substantive claims, not finally decided in this judgment, raise seven grounds in Hoareau (including fettering of discretion, proportionality, failure to give adequate reasons, unfair consultation, alleged breaches of Art. 8 and Art. 1 of the First Protocol under the Human Rights Act 1998, irrationality and breach of s.149 Equality Act 2010) and three grounds in the related Bancoult claim.

(i) Nature of the applications: the claimants sought specific disclosure and further information to support their judicial review challenges; the defendant provided disclosure and responses in stages and, by the time of the hearing, the parties had largely reached agreement.

(ii) Issues framed by the court: whether and to what extent disclosure should be ordered in judicial review proceedings; the correct test for specific disclosure (necessity to resolve the matter fairly and justly, as stated in Tweed); the prohibition on fishing expeditions; and the scope and content of the duty of candour and co-operation owed by public authorities (including the obligation not to be selective and to help the court by identifying material matters rather than merely producing voluminous documents).

(iii) Court’s reasoning and disposition: the court accepted that disclosure in judicial review differs from ordinary civil litigation and emphasised that the duty of candour requires public authorities to make full and fair disclosure and to assist the court by identifying the significant material, including "the good, the bad and the ugly." The court reviewed authorities (including Huddleston, Belize Alliance and Tweed) to explain that the respondent must not simply off-load documents but should explain their significance. The court recognised that factual issues can arise (notably in human rights and proportionality assessments) but that ordinarily judicial review focuses on legal issues and evaluative judgments rather than resolving extended factual disputes. Because the parties had reached agreement about the disclosure and information requests, the court approved the agreed draft order and invited the parties to file the final form for the court's approval. The substantive judicial review claims were not determined in this hearing.

The judgment also records the background history, including earlier failures to disclose documents (the Rashid documents) relevant to prior Bancoult litigation, and the importance of candour in public law litigation.

The court approved the parties' agreed draft order resolving the claimants' applications for specific disclosure and further information. The court reiterated established principles: disclosure in judicial review is not automatic, must be necessary to resolve the matter fairly and justly (Tweed), fishing expeditions are impermissible, and public authorities owe a duty of candour and co-operation to make full and fair disclosure and to identify material matters rather than merely producing voluminous documents. The substantive claims remain for later determination.