Applications for specific disclosure in judicial review

Although the Public and Commercial Services Union and the Prison Officers’ Association were ultimately unsuccessful in their legal challenge by way of judicial review to the government’s decisions to change the Civil Service Compensation Scheme in relation to payments made on redundancy or early retirement, the two civil service trade unions did achieve some success in their July 2011 application for specific disclosure of materials upon which the government’s decisions were based (R (Public and Commercial Services Union) v Minister for the Civil Service [2011] EWHC 2556 (Admin)).  

The judgment of the Administrative Court makes interesting reading given that it demonstrates the approach the court will take to specific disclosure in judicial review which, following the decision of the House of Lords in Tweed v Parades Commission for Northern Ireland [2006] UKHL 53, is that an order will be made if the circumstances of the case require disclosure.  Before the decision in Tweed, such applications were considered to be unnecessary, except in the rarest of cases, given the defendant’s duty of candour could be relied on to produce full and frank evidence.

The civil service trade unions’ challenge to the government’s decisions was on the basis that changing the compensation scheme amounted to an unlawful interference with the possessions of the civil servants and was contrary to Article 1 of the first Protocol to the European Convention on Human Rights (ECHR).  For information on the scope and extent of Article 1, see our Practice note, Article 1 of the first Protocol. In their application for specific disclosure, the unions argued that the government’s evidence and grounds for arguing that its interference with their possessions was justified only covered the final reasoning that led to its conclusions and did not sufficiently justify the underlying thought processes behind the decision nor give the unions the opportunity to see the materials upon which the decisions were based.

The court noted that the summary grounds of resistance lodged by the Minister for the Civil Service referred to a number of options and costings and something called the “cost envelope” that had been agreed with HM Treasury which had prompted the unions’ application for specific disclosure of documents, including:

  • Submissions to ministers.
  • Communications between ministers in connection with options, costs and savings.
  • Documents that evidenced consideration of discussion of, and assessment of, options by HM Treasury or Cabinet Office.
  • Documents that evidenced those individuals whose employment was expected to terminate.

Having regard to the various authorities on disclosure in judicial review to which the court was referred, including Tweed, R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409 and R (National Association of Health Stores) v Department of Health [2005] ECWA Civ 154, the Administrative Court concluded that although there were policy considerations in ordering disclosure of these  documents, it was clear that the defendant’s witnesses had placed substantial reliance on these documents in reaching their decisions.  A balance has to be struck between discouraging “fishing” by a claimant and over-burdening the disclosure exercise with a need to ensure that the court is equipped to make the correct decision on the correct materials.

Applying that balancing exercise, the court concluded that further disclosure was required.  However, it was not persuaded that the sweeping range of disclosure that was envisaged by the civil service trade unions’ notice of application was appropriate.  Clearly in reaching that decision, the court was concerned as to the extent to which it “would be able to interfere in what, counsel for the government correctly called ‘macropolitical economic decisions'”

Having concluded that further disclosure was required, the court issued a short 15-minute adjournment and invited counsel for the respective parties to see whether they could reach agreement between themselves on the categories of documents that could and should be disclosed.  Interestingly, although counsel for the civil service trade unions sought an order for the costs of their application on the basis that they had had to issue the application for specific disclosure of the documents underlying the government’s decisions (and clearly that application had succeeded in that disclosure of a substantial number of the documents was ordered by the court), the court declined to make an order in their favour, instead ordering that costs of the application should be reserved to the substantive hearing.

So a claimant, considering making an application for specific disclosure in judicial review proceedings, should consider the following.

  • Do the circumstances of the individual case justify the need for certain documents to be disclosed? Although it may not be necessary or appropriate in most judicial review cases, there may be instances where the interests of justice require disclosure (this is likely to be greater in a human rights case where proportionality is in issue).
  • Does the defendant’s summary grounds of resistance refer to documents, which demonstrate the defendant’s underlying thought processes leading up to the impugned decision and which, in the interests of fairness, should have been disclosed?
  • Will the materials requested in the disclosure application ensure that the court has the necessary materials to acquaint itself with all the issues and enable it to resolve the matter fairly and justly?

Claimants considering an application for specific disclosure of documents in judicial review may also find the following PLC materials useful:

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