APPLICATIONS TO THE COURT AND THE DUTY OF CANDOUR: THE JUDGE MUST SEE DOCUMENTS THAT ARE ADVERSE TO YOUR CASE

In Short & Ors, R (On the Application Of) v Police Misconduct Tribunal & Anor [2020] EWHC 385 (Admin)  Mr Justice Saini issued a warning about the duty of candour owed to the court, particularly on a without notice application.

“When one seeks an urgent injunction, on paper or orally, and particularly when one invokes the urgent application process in the Administrative Court, as a basic and well-established rule, it is incumbent upon the applicant to put all material before the judge, including any material which has been supplied by the potential respondent to the application.”

THE CASE

The claimants sought an order that a Police Misconduct Tribunal recuse themselves.  The claimants had sought an injunction preventing the Tribunal from hearing the matter, the judge had granted a stay.

THE WITHOUT NOTICE INJUNCTION

1. 1. Before leaving the matter, I shall come back to the issue which I mentioned at the outset of this judgment, which was the application for an injunction which I considered on the papers last week on Friday evening.

   2. As I have indicated, there was in fact a detailed pre-action response dated 30 January 2020 sent by the IOPC to the Claimant solicitors. That was a response to the letter before action which had been sent that very same day by Slater and Gordon on behalf of the Claimants. For reasons which are not clear to me, that letter was not put before me when I considered the application for a stay on Friday evening. I was left to do the best I could, with a substantial volume of material, to try and work out what, if anything, would be the response of the Interested Party and the Defendants to application for a stay.

   3. In my view, it was wholly unacceptable for the Claimants’ Solicitors not to put that letter before the Court. When one seeks an urgent injunction, on paper or orally, and particularly when one invokes the urgent application process in the Administrative Court, as a basic and well-established rule, it is incumbent upon the applicant to put all material before the judge, including any material which has been supplied by the potential respondent to the application.

   4. Had the letter of 30 January 2020 from the IOPC in fact been put before me on the evening of 31 January 2020, I am highly likely to have refused a stay because, when I looked at the substance of the points made on behalf of the IOPC in that letter, namely in relation to the question of alternative remedy, and the question of the underlying merits of the recusal application, the points that were being deployed by the IOPC reflect, in substance, my own reasons for having dismissed this application for judicial review.

   5. In those circumstances it is highly unlikely that I would have granted a stay and that the proceedings before the Tribunal, which were meant to start earlier this week on Monday, would have gone ahead.

IX. Postscript

1. 1. On oral delivery of this judgment on the morning of Friday 7 February 2020, I made costs orders in favour of the AA and the IOPC, such costs to be assessed on the standard basis. The IOPC however also made an application for indemnity costs based on the Claimants’ conduct in relation to the failure to draw the pre-action response of the IOPC to my attention when the application for an injunction was made on 31 January 2020. I have referred to that matter in more detail above.

   2. Regrettably, Counsel for the Claimants was without instructions in relation to the reasons for that failure (her relevant instructing solicitor was not, as I understood it, present at court). In light of that fact, and in fairness to the Claimants and their Solicitors, I agreed to deal with that application in writing.

   3. I should emphasise that I make no criticism of Counsel for the Claimants. She was, it seemed to me, seeking to deal with a situation which was not of her own making.

   4. If the application for indemnity costs is pursued by the IPOC and/or the AA, the Claimants’ solicitors will need to provide a full explanation to the Court as to how this situation arose and how the failure was consistent with well-established rules governing without notice applications.

   5. In this regard, I draw to their attention the following parts of the Administrative Court Judicial Review Guide 2019 in Section 14 (Specific Practice Points, Duty of Candour) and Section 16 (Urgent Cases):

“14.1.3 The Court will take seriously any failure or suspected failure to comply with the duty of candour. The parties or their representatives may be required to explain why information or evidence was not disclosed to the Court, and any failure may result in sanctions”.

“16.3.5. The fact that a judge is being asked to make an order out of hours, usually without a hearing, and often without any representations from the defendant’s representatives and in a short time frame, means that the duty of candour (to disclose all material facts to the judge, even if they are not of assistance to the claimant’s case) is particularly important, see paragraph 14.1 of the Guide”.

“16.4.6 Wherever possible the Court will want representations from the defendant before determining any application made in advance of issuing the claim form. Unless, by not granting that order, irreversible prejudice would be caused to the claimant, the Court will generally make an order allowing the defendant a short period to file written representations or the Court will direct that the application should be dealt with at a hearing listed with notice being provided to the defendant”.