Shoesmith loses judicial review but disclosure candour questions remain open

Sharon Shoesmith has failed in her application for judicial review against Haringey, Ofsted and The Secretary of State, Ed Balls. This, as the judge made clear, was to do with the narrow ambit of the judicial review process and says nothing about (or, at least, is not determinative of) the unfair dismissal proceedings which have been stayed pending the disposal of the judicial review. The judgment, a summary of it, and the judge’s remarks are on the Judiciary website. The judge said (in paragraph 546)

The point simply is this: the court’s power to intervene in respect of an administrative decision exists to ensure that it is not made unjustly in the sense that, when a fair process is required, the adoption of an unfair process will operate to undo the decision. For the reasons I have given I have not been persuaded that the grounds for intervention have been made out as against Ofsted and the Secretary of State. Whether Haringey was unfair in the way it dealt with the Claimant’s dismissal (not merely procedurally, but substantively) will, if she pursues the case, be decided ultimately by the Employment Tribunal.

The judge confessed to a “lurking sense of unease” in reaching his decision, partly because of an apparent gap between the statutory powers of a minister in such circumstances and the contractual relationship between employer and employee, and partly because of the particular circumstances of the case. He said as to the latter (in paragraph 543):

If there had been a sustainable case that the Ofsted report had been ‘made to order’ at the instance of, or on behalf of, the Secretary of State and that the results of the inspection were thus either a foregone conclusion or had been manipulated to give grounds for his decision, the outcome of this case would have been different. Suggestions of such dark processes have been made during the proceedings. Ofsted’s inept handling of its obligation of candour during the case may at the time it was revealed have appeared to provide a key to an otherwise locked door. When the further disclosure took place, the suggestions were renewed with greater vigour. However, on the evidence as deployed before me, those suggestions could not be translated into anything of greater substance whatever suspicions, on one interpretation of the material, might have been engendered.

Two appendices relate to the duty of candour point. I do not intend to summarise them in a hurry, but the short point is that the judge intends to pursue certain aspects of the conduct of disclosure with the Treasury Solicitor. Mention is made twice (once in the judgment itself and once in the second appendix) to the Al-Sweady case which I have written about (see Al-Sweady v Secretary of State for Defence: blame for e-Disclosure failures gets personal – and public). It appears that a note has been circulated internally by the Treasury Solicitor as a result of Al-Sweady to remind people about the duty of candour – I guess there may have been another one following Master Whitaker’s judgment in Goodale v The Ministry of Justice (see Goodale v MoJ – a template judgment for active management of eDisclosure). Every law firm responsible for litigation disclosure ought to be producing something similar, and for its clients as well as its own staff.

I suspect that there will be more than article to come about this. I will pull together the points of general application when I have had the chance to read, rather than merely skim, the judgment. Meanwhile, as I have suggested before, keep a copy of the standard form of disclosure statement pinned above the desk and give it a read before you embark on a disclosure exercise, not just as your pen (or your client’s pen) is poised to sign it. It is too late to reflect at that point on what is meant by the duty of candour.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Disclosure Statement, Discovery, eDisclosure, eDiscovery, Electronic disclosure. Bookmark the permalink.

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