Saini: Duty of candour
A High Court judge has strongly criticised Slater & Gordon (S&G) for a “wholly unacceptable” failure to give him a crucial letter when applying for an urgent injunction in a police misconduct case.
Mr Justice Saini said that, if he had seen the letter from the Independent Office for Police Conduct (IOPC) when he was considering S&G’s without-notice application, he would have been “highly unlikely” to have granted the stay of misconduct proceedings that he did.
S&G – which has admitted making a mistake – represented six Bedfordshire police officers who were involved in the detention and restraint of a man under the Mental Health Act in 2013. The man died in a police cell.
The claimants argued that, “because of prejudice arising from the content of certain documents” read by the chair of the tribunal, a non-practising solicitor, either the chair or the whole three-person panel should have recused themselves from hearing the misconduct allegations.
The panel’s decision to dismiss the recusal application triggered the urgent application for judicial review, as the tribunal was due to start the following Monday.
However, Saini J said that on Thursday 30 January, the day before he heard the application, the IOPC sent S&G a detailed pre-action response, but “for reasons which are not clear to me”, it was not put before him when he considered the application the following evening.
He was given four bundles of evidence and two bundles of authorities, as well as the pleadings. The judge said he had “no knowledge” of the position of the defendants and IOPC as an interested party.
Saini J said that he was left to do the best he could on a Friday evening, and work out “what, if anything, would be the response of the interested party and the defendants”.
He went on: “In my view, it was wholly unacceptable for the claimants’ solicitors not to put that letter before the court.
“When one seeks an urgent injunction, on paper or orally, and particularly when one invokes the urgent application process in the Administrative Court, as a basic and well-established rule, it is incumbent upon the applicant to put all material before the judge, including any material which has been supplied by the potential respondent to the application.”
Had the letter from the IOPC had been put before him, he was “highly likely to have refused a stay”.
This was because the points made on behalf of the IOPC reflected “in substance” the reasons he subsequently gave for dismissing the application and removing the stay.
Saini J awarded costs orders in favour of the IOPC and the Chief Constable of Bedfordshire, to be assessed on the standard basis.
However, he said the IOPC had applied for indemnity costs because of the failure to disclose the letter, and if this was pursued, S&G “will need to provide a full explanation to the court as to how this situation arose and how the failure was consistent with well-established rules governing without notice applications.”
Saini J drew the firm’s attention to sections 14 and 16 of the Administrative Court Judicial Review Guide 2019, setting out the ‘duty of candour’ in disclosing information to the court and its particular importance in urgent cases.
An S&G spokesman said: “There was no intention to mislead the court with the omission of this document. It was a genuine error and we accept the court’s criticism.”
Meanwhile, S&G has named John Connolly, former global chairman of Deloitte, as the new chairman of its board. Among his other board-level roles, he is chairman of the at-times controversial security company G4S.
