PLC Public Sector reports:
Ofsted’s failure to disclose potential evidence to Sharon Shoesmith in the case she has brought against Ofsted and others is a timely reminder of the duty of candour that parties in judicial review proceedings owe to each other and to the court.
As Mr Justice Foskett stated in respect of the Shoesmith litigation, a claimant is obliged to make full and frank disclosure of all material facts, even if these impact on the relief that the claimant hopes to obtain eventually in the judicial review proceedings. The defendant owes the same duty to make full and fair disclosure of all relevant materials, even those that:
- Might undermine or be adverse to their own position in the litigation.
- Support the claimant’s position.
- Extend to matters beyond the pleaded grounds in any claim form.
Parties should remember that this is a very high duty and one that is vital to ensure that judicial proceedings are conducted “with all the cards face upwards on the table”. It is also a continuing obligation so that if a party discovers relevant documents during the proceedings or, as Ofsted did, relevant documents after the hearing has concluded, the other party and the court must immediately be alerted to the new material.
In the Shoesmith litigation, the Treasury Solicitor refused the claimant’s initial request for disclosure of any early drafts of the Ofsted report on the basis that these were not reasonably necessary or proportionate to enable the claimant to prepare her case. In response to the claimant’s repeated request for any such documents, the Treasury Solicitor responded that no explanation had been given as to why these were relevant or necessary but that in any event Ofsted was unable to locate any further drafts. Therefore, the hearing of the case proceeded on the basis of the material before the court, with judgment reserved to a future date.
However as a result of an unrelated FOIA request, Ofsted discovered that three of the four witnesses who provided witness statements for Ofsted in the court proceedings had additional material in their possession, including earlier drafts of the Ofsted report, which had not been considered as part of Ofsted’s preparation of its case for trial and had not been disclosed to the claimant. Some of these materials were contained in the e-mail folder of a witness and were clearly important to an understanding of how the final version of the Ofsted report emerged.
Aware that the duty to give full and fair disclosure is a continuing one and that the judgment was shortly to be given in the case, Ofsted informed the court in writing that additional material had come to light and the judge directed the parties to attend a hearing. What is apparent from the judgment is that, when preparing the case for trial, witnesses for Ofsted were never specifically asked if they had earlier copies of the report but were only asked generally whether they had any relevant material. No explanation was given to the court as to why an electronic search of e-mails was not carried out as part of the disclosure exercise.
The seriousness of Ofsted’s omission to disclose these materials to the claimant and to the court was reflected in the indemnity costs order made against Ofsted. Such an order is only made where there has been a significant level of unreasonableness in the conduct of the litigation.
PLC Public Sector subscribers have access to a substantial number of resources relating to the rules of disclosure. In particular, the following practice notes:
- Disclosure: an overview, which provides an overview of the purpose of disclosure, summarising the disclosure process, its parameters and the main issues to consider.
- Disclosure: what is it and where are the rules?, which explains what disclosure is, where the rules can be found and what is meant by the overriding objective.
- Disclosure: the solicitor’s duty, which reminds solicitors of their role and duties in relation to disclosure and what they should communicate to their clients.
- Disclosure: scoping and conducting a search for documents, which explains the scope and conduct of a search for documents.
- Disclosure: electronic disclosure: what is it and how do I deal with it?, which sets out the rules and practice on electronic disclosure.
- Disclosure: withholding disclosure and/or inspection, which deals with withholding disclosure and/or inspection and explains the circumstances when documents must be disclosed but need not be available for inspection.
- Disclosure: sanctions for non-compliance with disclosure obligations, which set out the sanctions for non-compliance with disclosure, explains what may happen if a party does not comply with their disclosure obligations and examines the issue of document destruction, something that the newly disclosed Ofsted documents suggest may have occurred.
Having access to these resources will ensure that, unlike Ofsted, those involved in court proceedings will not be guilty of serious failings in their duty of candour.