Duty of candour

Marshall and others v Deputy Governor of Bermuda and others PC TLR 7 June

Lord Donaldson in R v Lancashire County Council Ex Parte Huddleston ([1986] 2 All ER 941 at 945 held that the fact that leave to apply for judicial review had been granted called for some reply from the defendant. Once a public law court had concluded there was an arguable case that a decision was unlawful, the court was entitled to be given the reasons for the decision. The claimants relied on this judgment in submitting that when a person brought public law proceedings challenging the conduct of the public authority the defendant was under a duty of candour to explain to the court exactly what had happened and why. Lord Donaldson drove a distinction between the legal duty on a public authority to provide an individual with reasons for a decision and the duty to provide a court with reasons for the authority’s conduct. Breach of the former duty could lead to a quashing of the decision without more. Failure to observe the latter would lead to the court drawing inferences adverse to the public authority, but it would not necessarily do so. Each of the cases in which Lord Donaldson made these statements involved the decision taken by a public authority that related to and adversely affected an individual. In the present case the Board held that care has to be taken when applying those statements to judicial review proceedings in relation to acts of public authorities that did not involve any exercise or discretion. Furthermore, Lord Donaldson’s statements applied to the situation where it was not possible for the court to assess the merits of an issue that had been raised unless the public authority against whom the claim was brought furnished the court with information which it alone was in a position to provide. They should not be relied upon to transfer to the defendant the owners approving matters which a claimant was under a duty and in a position to prove. The invocation of the duty of candour in the present case was misconceived.