DISCLOSURE IN JUDICIAL REVIEW - adminlaw.org.uk.docVIP

DISCLOSURE IN JUDICIAL REVIEW James Maurici  “The fact that ordinarily there is no disclosure [in judicial review] is the overriding feature in relation to costs. The parties simply put forward the documents upon which they rely, subject to any direction by the court that some specific document or group of documents should be disclosed. During the eight years that I sat as an Administrative Court judge, I was not aware of the absence of disclosure becoming a source of injustice. Nor (so far as I can recollect) did counsel ever suggest that this was the case.” (Civil Litigation Costs Review Preliminary Report by Lord Justice Jackson May 2009, chapter 7, para. 2.3) DISCLOSURE IN JUDICIAL REVIEW PRE-TWEED It is well known that the traditional position in judicial review was that: the defendant has a “duty of candour” (see e.g. Belize Alliance v Department of the Environment [2004] UKPC 6; R (Quark Fishing) v SS Foreign Commonwealth Affairs [2002] EWCA Civ 1409 at [50] and R v Lancashire CC, ex p Huddleston [1986] 2 All ER 941 “it is a process to be conducted with all the cards face up on the table”); there was no general duty of inspection, disclosure etc. in judicial review unlike other civil litigation; the ordering of specific disclosure in judicial review was rare. This would generally only be ordered where it was shown that the defendant’s evidence was inaccurate, inconsistent or incomplete: see e.g. R v SSE, ex p Islington BC [1997] JR 121 at 126 and 128 – 129 and R v Secretary of State for Foreign Commonwealth Affairs, ex p WDM [1995] 1 WLR 286 at 396. As the quotation above indicates Jackson LJ considered the general absence of disclosure in judicial review as an overriding feature of the procedure which helped to limit costs. TWEED – IMPLICATIONS (i) the decision in Tweed Of course, now the starting point for understanding the requirements for disclosure in relation to judicial review is Tweed v Parades Commission [2006] UKHL 53; [2007] 1 AC 650. In Tweed