One of the issues I am interested in is whether the courts take ethical failure in legal proceedings seriously enough. This week brings forth an interesting example to consider. The case is an immigration one, R (HM, MA & KH) v SSHD  EWHC 2729 (Admin), and it concerns the Home Office’s admitted breach of its duty of candour in judicial review proceedings. You can read an excellent summary here on the Free Movement blog.
The case concerns two judicial reviews, eventually joined into one case. Both concerned a policy of removing phones from asylum seekers. The claimants’ lawyers alleged there was a blanket policy of doing so.
In responding to the first judicial review, lawyers for the Home Office thought it appropriate to respond, “without disclosing the existence of the blanket policy about which they knew.” (para. 38) The court say this failure was a breach of the duty of candour but also portray this as a good faith error. To do so is a sympathetic reading of the evidence before the court given, “the firm and robust way in which the allegation of blanket policy was refuted [by the Home Office] in the pre-action protocol letters and the acknowledgement of service and summary grounds of defence,” which, “suggested that the allegation of blanket policy was fanciful.”
The court says simply, “this was a suggestion that ought not to have been made.” Indeed not; to suggest something is fanciful when it is known to be true, is very capable, of being described as a statement which is made knowingly and recklessly to mislead. As every lawyer, certainly any who read this blog, should know, knowingly or recklessly misleading anyone, and particularly misleading the court and/or one’s opponent, is serious professional misconduct. It is striking off territory.
At this stage of the proceedings, the lawyers involved believed there had been a blanket policy, but that it had been withdrawn. They were wrong about the withdrawal. It hadn’t been withdrawn until much later, but they did not know that (there is a hint that those instructing the lawyers did know that and chose not to say so, but let that pass for now). One might forgive the lawyers for not disclosing a blanket policy which was not applied at the time of the case before them as not being relevant and therefore not being disclosable, but for their attempt, in the court’s eyes to suggest the idea of a blanket policy was fanciful. The judge, a Court of Appeal judge, rather kindly emphasises the legal teams genuine belief that it was appropriate to “undermine the assertion that there had been a blanket policy”. It is difficult to understand why a genuine belief helps here. Why is it appropriate to genuinely believe that one can undermine something that is true in litigation, still further litigation where the duty of candour applies? Instead, the court chooses to emphasise their principal criticism of the first judicial review handling as being “excessively robust”. They do not consider whether it was in fact misleading.
A thoughtful reader might be thinking sympathetically here of the pressures of litigation on those involved. The possibility for a point of balance to be lost, a case to be overstated in the heat of the moment, without thinking about it. There are some reasons (although in fairness one should not take this as conclusive) for thinking that is not what happened here. For instance when counsel drafts the pre-action protocol letter for use in the first judicial review case they specifically avert to the fact that they have “sidestepped the fact that the policy has been applied uniformly”. That is, they have sidestepped the fact that there was a blanket ban, albeit not in force at the time (they thought, erroneously as it turns out) at the time of the individual’s complaint. As the court notes, Counsel had put the government legal department on notice as to the approach he was taking to this issue and the government legal department did not challenge him (see para. 29). And in relation to a further draft counsel refers in a covering email to, “the blanket policy, which I have ducked.” As the judge notes, “it appears to us that in using the words “sidestepped” and “ducked” counsel is highlighting an area of concern which is becoming more pressing is the proceedings progressed.”
The court sees this as a breach of the duty of candour and of course it is (indeed, it seems the Home Office accepted it was and apologised). But if the court is right to say the Home Office was suggesting a blanket policy was fanciful, these comments by counsel suggest that more than sidestepping is going on here. Jackson LJ’s words on integrity bear repetition:
Integrity connotes adherence to the ethical standards of one’s own profession. That involves more than mere honesty. To take one example, a solicitor conducting negotiations or a barrister making submissions to a judge or arbitrator will take particular care not to mislead. Such a professional person is expected to be even more scrupulous about accuracy than a member of the general public in daily discourse. Jackson LJ, Wingate and Evans v SRA  EWCA Civ 366
Those words must be doubly true when a lawyer is litigating under a duty of candour. What the lawyers were trying to do was win the case further Home Office. A point in tension with the very first substantive sentence of the Treasury Solicitors own guidance on the duty of candour:
“A public authorities objective must not be to win the litigation at all costs but to assist the court in reaching the correct result and thereby to improve standards in public administration.”
The second judicial review gives rise to a more, perhaps I should say even more, serious misjudgement by the Home Office. In that case, a response to the judicial review application is drafted and served even though Counsel (who did not draft the documents) having expressed concern about the date of the mobile phone seizure in that particular case, because a blanket ban they knew was in force then. The response (the formal defence to the judicial review ) as drafted and served indicated the legal issues in the second judicial review were the same as the first judicial review. This was plainly false. As the judge says, “that stance was liable to convey a misleading impression to the judge.” The documents should have made clear that the judicial review related to a time when the blanket policy was in place. “Instead of volunteering that information these documents, in our judgement, convey the opposite impression.” This material misleading the court was corrected by the Home Office subsequently, and, “in the long run,” the court opines, “no harm was done.” Well except adding, “enormously to the cost and burden on all concerned of the proceedings”.
The court portrays this as an error of judgement, giving considerable benefit of the doubt to the Home Office lawyers responsible for the documents. That Counsel had raised the point suggests the Home Office personnel dealing with drafting the response were aware of the problem. This points towards (but does not prove, in fairness) deliberate or reckless misleading of the court.
Whilst the breach of their duty of candour is treated a serious one for the Home Office, it is also said to be a collective failure, with people operating under pressure doing the best in good faith. I’m afraid, I simply do not think that is good enough; if the courts want to vigorously protect the duty of candour and the integrity of judicial review, not to mention the lawful conduct of Home Office business then a more forceful interrogation of the issues is needed. The court quite properly says that, “it is not alleged that any participant in this process was acting dishonestly or in bad faith,” and make no finding of bad faith or dishonesty, and they understandably point towards the limits of judicial review proceedings as a vehicle for allocating individual blame, but there are plain and obvious reasons to think that the court has been misled here, and some evidence to suggest that that misleading might have been done knowingly or recklessly. It is reasonable of them to say that judicial review proceedings are not the right venue for establishing dishonesty, but so too they are not the right venue for saying that everything has been done in good faith. The court should neither minimise nor exaggerate what is before it. What it should do is ensure that the matter is investigated. Perhaps it has done so, sotto voce, and referred the case to the regulators. I certainly hope so. Any lawyer understanding, even in fairly rudimentary terms, the duty of candour, would know it should not be sidestepped or ducked, still less in ways that are excessively robust.