The High Court has made scathing criticisms of government lawyers who failed to comply with their disclose obligations in a judicial review challenge to unlawful detention.
One of the lawyers responsible, Ms Sarah Kelly, from the Home Office Immigration Litigation of the Government Legal Department (‘GLD’), is named and shamed at some length in the judgment (R (Babbage) v Secretary of State for the Home Department [2016] EWHC 148 (Admin)).
Here’s a run-down of the 4 key do’s and don’ts.
1. Do respond to your opponents’ disclosure requests
When the Claimant’s solicitors write letters which specifically identified the documents they wished to see, the government should respond and not simply fob them off. The Judge was clearly unimpressed by the government’s unresponsive attitude (§ 5 – 7).
In my experience, getting disclosure from the government’s lawyers is like pulling hen’s teeth. First, they suggest you make a formal Subject Access Request (‘SAR’) rather than an informal request by letter. Once you have done the SAR, they will routinely fail to respond within the legal time limit of 40 days. Then, at the 11th hour, a vast bundle of documents will be dumped on you barely in time for the Court hearing. How this has become standard practice, particularly in cases where a person’s liberty is at stake, is difficult to fathom.
The government may believe it is above the law. Or, more likely, they are so inefficient that the basic legal duties (of candour in judicial review proceedings and seeking to resolve matters before coming to Court) have not seeped into the concrete that surrounds their collective consciousness.
2. Don’t ignore the Court’s disclosure orders
Obviously, no-one in their right mind should do this. You run the risk of sanctions, costs orders and even contempt of Court.
As anyone with even a remote awareness of the UK legal system knows, the climate of civil litigation is changing. A string of cases since Mitchell v Newsgroup have made it very clear that a party who flouts court orders without good reason should expect to face a Judge’s wrath.
At times the government appears to remain oblivious to the tougher approach by the Courts. Here, the government was in “clear disobedience” of the Court’s order for disclosure (§ 9).
The reason? None that we know of.
The Home Office gave all the documents to the GLD months in advance of the hearing and the GLD just sat on them.
3. Don’t ███████████████████████████████, without a good reason
Apparently, it is now common for the GLD to redact documents as part of their data protection policies. In this case, key passages of many of the documents were blanked out. Despite the fact that Ms Kelly from the GLD attended the hearing, no explanation for these redactions was given (§ 11).
In an appropriate case, some redaction may be justified (for example to protect the identities of third parties). Unless reasons are provided, the Court and the other side have no way of knowing what is being covered up and whether to argue or concede it.
4. Don’t pick and choose what to disclose when a Court has ordered specific disclosure
As the Judge put it in rather strong terms:
19. … It is wholly unacceptable for those acting for the Secretary of State to ignore or disregard the orders of the Court. Furthermore, once a Judge of this Court has identified specific documents which are required to be disclosed, there is no basis for the exercise of any discretion by the Secretary of State’s advisers. If the document falls within the class covered by the Order, it must be disclosed.
20. In particular, it is not open to the Secretary of State, or her advisers, to decide that some of the documents falling within the category made subject to the Order ought to be redacted to protect some interest of the Home Office or because they do not appear, to the Secretary of State, to be relevant to the issues in the case. The Order of the Court determines relevance and disclosability.
…
21… What must never happen is that those acting for the Secretary of State (or any other party) decide, off their own bat, not to disclose material subject to an order of the court because they judge it irrelevant.
If the government wishes to resist disclosure of certain information in the Order, the proper course is to apply to vary the Court Order and to explain why the variation was justified. In other words, the government must do the same as every other Court user.
As it happens, the Secretary of State was not facing a claim for damages in this case. If they were, there would be ample grounds for aggravated and/or exemplary damages, as well as costs, due to their high-handed, unreasonable conduct and disregard for elementary rules of litigation, not to mention violation of constitutional principles stemming back to the Civil War.
