Hoareau, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs

Disclosure in judicial review is not automatic and is ordinarily unnecessary because the issues are legal rather than factual. The court may order specific disclosure where it appears necessary to resolve the matter fairly and justly; fishing expeditions are impermissible. Where factual evaluation is required, especially in procedural-fairness or human-rights cases, the court should distinguish resolving factual disputes from evaluating the facts. Public authorities owe a duty of candour and co-operation, particularly after permission, requiring full and accurate explanations of relevant facts and decision-making reasoning. They must not selectively disclose or overwhelm the claimant with documents. A document relied on as significant should ordinarily be exhibited.

Two pending judicial reviews challenged a Ministerial announcement made on 16 November 2016 concerning resettlement and related decisions affecting Chagossian claimants. The claims raised issues including fettering of discretion, proportionality, reasons, consultation fairness, Convention rights, irrationality and the public sector equality duty. Before the merits hearing, the claimants applied under Part 31 for specific disclosure and Part 18 for further information within proceedings under Part 54 of the Civil Procedure Rules. Following further disclosure and responses to supplementary requests, the parties agreed the outstanding matters. The court therefore set out the governing principles and approved an agreed draft order. The central issue was the proper scope of disclosure and candour in judicial review proceedings.

Disposition. The claimants’ applications for specific disclosure and further information were resolved by agreement. The court approved the agreed draft order, subject to final approval of its form. The merits of the underlying judicial reviews were not determined.

1. Disclosure in judicial review. Disclosure is not automatic. Judicial review differs from ordinary civil litigation because the issues are usually legal and factual disputes are generally unnecessary and inappropriate to resolve. Paragraph 12 of PD 54A confirms that disclosure is not required unless the court orders otherwise.
2. Specific disclosure. Where factual issues arise, the court must consider whether disclosure is needed to resolve the matter fairly and justly, following Tweed v Parades Commission for Northern Ireland [2006] UKHL 53, reported at [2007] 1 AC 650. There is no warrant for fishing expeditions.
3. Duty of candour and co-operation. After permission has been granted, a public authority owes the court a duty of candour and co-operation. The duty requires full and fair disclosure and accurate explanations of relevant facts and the reasoning behind the challenged decision. It reflects the public law relationship described in R v Lancashire County Council, ex p Huddleston [1986] 2 All ER 941 and Belize Alliance Conservation of Non-governmental Organisations [BACONGO] v Department of the Environment [2004] UKPC 6, reported at [2004] Env LR 38.
4. Quality and completeness. A public authority should identify relevant matters and should not simply provide an overwhelming mass of documents. Disclosure must not be selective, as recognised in Lancashire County Council v Taylor [2005] 1 WLR 2668. The related duty of candour applies to all parties and prohibits misleading the court by non-disclosure or by failing to identify the significance of a document or fact.
5. Significant documents. Although the court did not resolve the wider best-evidence argument, it accepted that where a public authority relies on a document as significant to its decision, it is ordinarily good practice to exhibit it. The parties’ agreed resolution made it unnecessary to apply these principles to a contested disclosure decision.