Playing your cards face down: HM, MA & KH v SSHD and the consequences of uncandid disclosure

Introduction 

The High Court (sitting as a Divisional Court of two judges) has handed down an important judgment concerning a breach of the duty of candour (the duty of parties to judicial review proceedings to be honest with the Court, as explained further below) by those acting on behalf of the Secretary of State for the Home Department (the “Secretary of State”).[1]

That claim, which was upheld by the Divisional Court in March 2022 (see here), sought to challenge the lawfulness of a blanket policy operated by the Secretary of State for the search and seizure of, and retention of data extracted from, the mobile phones of individuals who arrived in the United Kingdom as migrants in small boats from France – a policy which the Secretary of State’s defence team had initially denied existed.

In a hearing on 14 October 2022, held for the primary purpose of addressing these candour failings, the Court identified a number of “errors of judgment” on the part of those who had acted on behalf of the Secretary of State. The judgment serves as a reminder for legal and client teams that the highest levels of transparency apply at all stages of judicial review proceedings. Anything less risks costs consequences, professional embarrassment and, potentially, collective or individual sanctions.

The duty of candour 

Judicial review proceedings, in which the Court reviews the lawfulness of a decision or action made by a public authority, are subject to unique and restrictive rules. Claims must be brought promptly; the standard disclosure regime does not apply; and the permission of the Court is required for the case to proceed. 

However, all parties to judicial review proceedings are subject to a “duty of candour”. This requires the parties to assist the Court with full and accurate explanations of the facts relevant to the issues which it must decide.[2] The parties must conduct the litigation so that “all the cards face upwards on the table”, and draw the Court’s attention to “the good, the bad and the ugly”.[3] As the courts have acknowledged, the “vast majority” of those cards will start in the public authority’s hands.[4]

The duty is underpinned by an understanding that, unlike in traditional disputes involving private interests, in judicial review, the public authority and the Court have a common aim of “maintaining high standards of administration” and fulfilling “the public interest in protecting the rule of law.”

The content and parameters of the duty of candour have been defined by case law and are summarised in the Administrative Court Guide (2022) and, for public authorities, in the Treasury Solicitor Guidance on Discharging the Duty of Candour (2010). These provide that: 

• The duty is a weighty one, which applies to both claimants and defendants. It requires the parties to assist the Court with full and accurate explanations of all facts relevant to the issues which the Court must decide, including information which might undermine the party’s own case.
• The duty applies at every stage of the proceedings, including pre-action correspondence. For public authorities, the duty arises as soon as it becomes aware that someone is likely to test or challenge the decision or action.
• The duty requires that witness statements and supporting evidence put before the Court are clear and unambiguous. Public authorities’ cases must be presented “dispassionately and in the public interest”, without adding “spin”.

Given the importance of the duty of candour, the consequences of breaching it can be significant: it may have costs consequences for the party in breach, and the uncandid conduct can be taken into account for the purpose of assessing damages as a remedy to the substantive claim. Where there has been a serious breach of the duty of candour, the Court may make a “Hamid” referral, which enables a Divisional Court to investigate the legal advisers’ compliance with their duties. 

The Court’s approach in HM, MA & KH 

In HM, MA and KH, the Claimants sought to challenge the lawfulness of a blanket policy for the search and seizure of, and retention of data extracted from, the mobile phones of individuals who arrived in the United Kingdom as migrants in small boats from France. In March 2022, the Divisional Court found that policy to be unlawful (you can read the judgment here). 

The initial position of those responding to the claim on behalf of the Secretary of State, in legal correspondence and documents filed at Court, was that no such blanket policy existed. It was only later, once permission for judicial review had been granted, that they conceded the existence of this policy. In June 2021, the team acting for the Secretary of State admitted that this was a breach of the duty of candour and offered an “unreserved apology”. The Court ordered that a further consequential hearing take place to address this serious failure. 

At the consequential hearing, held on 14 October 2022, the Court criticised those who had initially responded to the claims on behalf of the Secretary of State for their “collective error of judgment”. The Court’s key findings were that:

• There was a failure to provide accurate instructions, which was the origin of the subsequent failings of those acting on behalf of the Secretary of State. Those responsible for the policy had failed to explain it clearly to the government lawyers and Counsel then instructed. This meant that the lawyers mistakenly understood when responding to the first claim (HM) in November 2020, that there had been a blanket policy, but that it had been replaced in June 2020 with a narrower one. In fact, the June 2020 amendments to the policy had not repealed the blanket phone seizures. The Court said this error was “very surprising” since the relevant officers were, at the same time as instructing the lawyers, involved in an amendment that would repeal the blanket policy, which came into effect at the end of November 2020.
• The way the existence of the blanket policy was initially refuted by those responding to the claim on behalf of the Secretary of State, in legal correspondence and documents filed in Court, was “excessively robust”. The duty of candour required the team to articulate the facts known by them; to accept that there had been a blanket policy and to assert that it had been abrogated in June 2020. This would have placed the parties and Court on equal footing and led to the misunderstanding being realised sooner than it was. Instead, the documentation they prepared labelled the grounds of challenge as “unarguable”, the allegation of a blanket policy as based on “anecdote and surmise”, and the requests for disclosure a “fishing expedition”. The Court noted this was designed to “avoid permission” and said that this approach was an “error of judgment”.
• The approach of those acting on behalf of the Secretary of State to the second claim (MA & KH), brought in February 2021, was “very unsatisfactory”. The team were aware that these claims concerned individuals whose phones had been seized under the blanket policy. Rather than acknowledging this, the response they prepared sought and secured a stay on the basis that those claims were ‘materially the same’ as the first claim, which by then had been granted permission. Had the Court been given the information to which it was entitled, it would not have granted the stay.
• These were collective, not individual failures.  The Court acknowledged that everyone involved was under great pressure and acting under intense media scrutiny and political interest and did not conclude that anyone had acted in bad faith. However, the Court was concerned by the “failure of governance” that led to these errors and allowed the unlawful policy to continue.

The claims settled prior to the candour hearing, but the Court noted that had it been invited to do so, it would have awarded a higher level of costs (on the “indemnity” rather than standard basis) due to the candour breaches. It also took the extraordinary step of requiring its order to be published on the Home Office website for a period of 12 months, given its significance. 

Observations 

A number of key themes arise from the Court’s approach in HM, MA & KH: 

• Facts should be clearly understood and presented: a litigation strategy of robust denial in an effort to avoid permission being granted should not be adopted if the facts do not support it. Legal advisers should ensure that they receive clear and accurate instructions from those who are responsible for the decision or action being challenged, and accurately reflect the information that they receive.
• Disclosure errors should be promptly investigated and corrected: the Court expressly thanked those involved in the investigation for their frankness and candour in correcting the errors once they had been identified. Ensuring that any erroneous information is promptly corrected once identified will prevent further wasted costs, may avoid a more serious sanction being issued.
• External pressures contextualise but do not excuse governance failings: the Court noted that the breaches took place against the backdrop of pressures arising from the pandemic and related communication issues relating to remote working, as well as time and resource constraints on those involved in managing the Government’s response to channel crossings. However, those factors did not excuse the breaches, and it is apparent that the Court’s expectations of transparency and co-operation will not be lowered in times of crisis.

More broadly the High Court’s decision in HM, MA & KH serves as a reminder of the central importance of the duty of candour to judicial review proceedings, and the weighty responsibility of all members of a legal and client team to ensure that it is complied with. 

Linklaters acted for Privacy International as intervener in the case. 

Footnotes:

[1]    HM v Secretary of State for the Home Department (CO/4793/2020); MA & KH v Secretary of State for the Home Department (CO/577/2021). 

[2]    R. (Quark Fishing Ltd) v SSFCA [2002] EWCA Vic 1409 at §50. 

[3]    R. (on the application of Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin) at [20]; R. (on the application of Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812; [2018] 4 W.L.R. 123 at [105]-[106]. 

[4]    R. v Lancashire CC Ex p. Huddleston [1986] 2 All E.R. 941 at 945.