knowledge 10 March 2020 |

“Not a good look”: Court may re-open judgment where party withholds relevant information

Background

Mr Shao applied to the High Court in judicial review proceedings to quash a Ministerial order deporting him to China.  The High Court delivered an ex tempore judgment on 26 November 2019, refusing to quash the deportation order and adjourning the matter for submissions on costs.  Following delivery of the ex tempore judgment but prior to final orders being made, further evidence was adduced on affidavit to the effect that certain relevant material was not properly disclosed to Mr Shao or to the Court.  On the basis of that further evidence, Mr Shao asked the Court to re-open its ex tempore judgment and, again, to quash the deportation order.

Candid Duty of Disclosure

In its second judgment, delivered on 3 February 2020, the Court emphasised the higher duty of disclosure that exists in judicial review proceedings, stating that “withholding relevant information from the Court is not a good look.” The respondent (i.e. the State or a public body) must disclose all relevant factual material to the applicant and to the Court.

This ‘candid’ duty of disclosure is well-established in judicial review proceedings and ensures that public bodies assist the Court with full and accurate explanations of all facts relevant to the issues which the Court is asked to decide.  It is a higher burden of disclosure than exists in civil plenary proceedings, where a respondent can remain silent about weak points in their own case (at least to the extent that such silence does not create a misleading impression).  In this case, the Court found that considerations of disclosure were over-influenced by what the respondent’s case was, rather than by what the material issues overall were, taking due account of the points being made by Mr Shao.  

Re-Opening a Judgment

The Court referred its own judgment in Lavery v DPP (No. 3)² as providing authority for eight different situations in which a judgment can be re-opened after it has been delivered.   In that case, the Court found that it could re-open its judgment:

1. Prior to perfection of the order;
2. After perfection of the order, where there are material errors of fact in a judgment;
3. Where the ‘slip rule’ (Order 28, rule 11, Rules of the Superior Courts) applies to correct clerical-type errors of any kind;
4. Where the judgment was procured by fraud;
5. Where the judgment or perfected order does not reflect what the Court actually decided or intended;
6. In order to set aside the judgment in exceptional circumstances on grounds of bias;
7. Where exceptional circumstances (including common mistake) render the re-opening of the judgment necessary in the interests of constitutional justice or to give effect to constitutional rights; and
8. Where orders are not intended to be final in an absolute sense and may include, either expressly or impliedly, liberty to the parties to apply or to re-enter.

The Court considered that exceptions 1, 4 and 7 above were each satisfied in the Shao proceedings and accordingly the Court re-opened its judgment.

Certiorari

The Court found that the failure by the respondent to adequately disclose relevant information to Mr Shao and to the Court meant that significant new information came to light following delivery of the Court’s judgment that had a material factual bearing on the outcome of the judgment.  Accordingly, the Court made an order of certiorari quashing the deportation order against Mr Shao. 

Comment

This case demonstrates the principal importance of ensuring compliance by State parties with their special duty of candour to apprise the Court of all relevant facts in judicial review proceedings.  That is an onerous obligation for many State bodies to meet, particularly in complex judicial reviews where information gaps widen and institutional knowledge lapses over time.  Failing to comply with that obligation, however, can have serious consequences for the public body involved, in that the Court has shown clearly in this case that it is prepared to re-open and revise its own judgment on the basis of a public body’s failure to comply with its duty of candour to the Court.  It is now more important than ever that public bodies answering judicial review proceedings understand fully the extent and scope of the disclosure to be made during the course of those proceedings in order to avoid the risk of the proceedings being re-opened after they have seemingly been completed. 

Contributed by Glen Rogers