Public authority in civil and family proceedings
A public authority bears responsibilities to the court in litigation because it is a public authority. This was illustrated by Midcounties Co-Operative Ltd, R (on the application of) v Forest of Dean District Council & Anor  EWHC 1251 (Admin), and the comments of Singh J on the local planning authorities’ dealings with opposition to an out-of-town planning application. Could the comments of the Administrative Court ever apply to cash-strapped children departments in care proceedings, especially in relation to appeals or applications to discharge of care or placement orders?
Cinderford, in Gloucestershire, had been subject to successive planning applications for an out-of-town supermarket proposed by a development company. The application was opposed on judicial review by the Co-op. Initially the local planning authority got its reasons for supporting an out-of-town project wrong. And they were successfully challenged on judicial review – once, then twice. On a third occasion they were challenged yet again; but this time their approach was: they disagreed with the challenge, but did not appear in court to dispute it. They left it to the supermarket to whom they had given planning permission to present the case as to why it was not unlawful to grant them permission.
Grounds for non-appearance of local authority: cash constraints
The local authority pleaded cash constraints for their non-appearance at the judicial review hearing. They merely wrote to the court saying that they opposed Co-Op’s challenge, and left it to the developers to present the grounds of resistance.
‘ … What is unusual in the present case is that the Defendant has informed the Court in a letter that it does not concede the claim but, since it cannot afford to take an active part in the proceedings for financial reasons, it supports the interested party [Trilogy Developments Ltd] in its resistance to the challenge.’
Their pleaded costs constraints left them taking no further part in the proceedings. However, said the judge, whilst financial pressures are one thing, ‘the stance taken by the Defendant could lead to tension with certain fundamental aspects of the way in which judicial review proceedings are conducted’ (para ).
Singh J criticised this approach and allowed Co-op’s application for a quashing order. In doing so he made a variety of general comments. A council, or indeed any public authority, should not behave like a private litigant. It owes wider duties, because it is a public authority. Judicial review is not like ordinary private litigation in particular
‘ More fundamentally, it is because the relationship between a public authority defendant and the court is not the same as that between an ordinary litigant and the court. In particular… a public authority defendant in judicial review proceedings has a duty of candour and co-operation so as to assist the court in understanding its decision-making process and deal with the issues fairly. It should conduct the litigation with its cards face upwards. This is based on the concept that it acts in the public interest, and not merely to protect a private, commercial interest.’
All parties have a duty to be frank with the court; but, said the judge (para ) this will this will not necessarily provide all the information needed: for example, a party ‘may not have in its possession all relevant documents in order to be able to assist the court to understand the decision-making process of the public authority whose decision is under challenge’. (Helpful guidance to public authorities is provided by the then Treasury Solicitor in December 2010 is provided by Guidance on Discharging the Duty of Candour and Disclosure in Judicial Review Proceedings – https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/285368/Tsol_discharging_1_.pdf; and much of what is said here may be of guidance to local authority lawyers in children proceedings.)
Steps of a cash-strapped local authority: duty of candour
So what is a cash-strapped local authority to do? Singh J concluded his judgment with the following addressed to public authorities:
 It seems to me that, if a defendant public authority finds itself in the position where it cannot, for financial reasons, defend its own decision in judicial review proceedings, and in particular where it cannot file a skeleton argument or make oral submissions at a substantive hearing, it should at least consider the following:
(1) whether it has complied with its duty of candour and co-operation, by disclosing all relevant documents;
(2) whether its duty of candour and co-operation requires it to file a witness statement to assist the court in understanding its decision-making process and dealing with the claim for judicial review fairly;
(3) whether it should file an acknowledgement of service, with summary grounds of resistance, even if only in outline form, so that at least the gist of why it maintains that its decision is correct in law is explained;
(4) whether a representative of the authority (not necessarily a lawyer) should be present in court at any hearing, so that the authority is in a position to know what is going on and it can rapidly take steps to deal with points which may arise unexpectedly or answer judicial questions if invited to do so.
In summary terms – applicable, perhaps, to any public law proceedings (judicial review and children proceedings) where a local authority is a party – has a local authority done any or all of the following:
- Has the authority made available to the court and the parties all documents relevant to the issues to be considered by the court (para (1));
- Does the local authority need to do any more: eg to file a statement (or other court document: ie an acknowledgement of service and summary defence in judicial review proceedings) to explain its decision-making process and any other relevant issues of fact and of law (paras (2) and (3)); and
- Should a representative of the authority (not necessarily a lawyer) be present in court at any hearing, so that the authority is in a position to know what is going on and it can rapidly take steps to deal with points which may arise unexpectedly or answer judicial questions if invited to do so?