R (on the application of BG) v London Borough of Hackney (social media; candour; disclosure) [2022] UKUT 00338 (IAC)
- Document source:
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Date:
27 October 2022
R (on the application of BG) v London Borough of Hackney (social media; candour; disclosure) [2022] UKUT 00338 (IAC)
Comments:
(1) The duty of candour which applies in judicial review proceedings
obliges the parties to disclose all material facts, including those
which are or appear to be adverse to his case.
(2) That duty also obliges the parties to make reasonable enquiries to
identify such facts, so as to ensure that the judge dealing with the
application has the full picture.
(3) In practice, the duty of candour obliges an applicant’s legal
representatives in Age Assessment Judicial Review proceedings to:
(i) Ascertain what social media and other methods of
communication are used by the applicant;
(ii) Consider the relevant accounts with a view to ascertaining
whether they contain any material which potentially
undermines the applicant’s case; and
(iii) Disclose any material which might be relevant to the case,
including any material adverse to the applicant.
(4) The duty is a self-policing one, but the Upper Tribunal might
legitimately require a ‘disclosure statement’ from an applicant’s
solicitor, confirming that the applicant has disclosed to them the
details of any social media accounts that they hold and that the
solicitor in question has undertaken a reasonable and
proportionate search of those accounts in order to ensure that all
documents relevant to the issues in the case have been disclosed.
(5) When the Upper Tribunal considers an application for specific
disclosure, it will be a highly material consideration that the
applicant’s solicitor has made such a disclosure statement.
(6) In order for the Upper Tribunal to make an order for specific
disclosure, it is necessary for there to have been an application for
the same; such an order cannot be made as a matter of course.
Instead, the test will always be whether, in the given case,
disclosure appears to be necessary in order to resolve the matter
fairly and justly.
(7) An order for specific disclosure of material from an applicant’s
social media accounts is likely to represent an interference with
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their private life and it is necessary to consider the breadth of the
disclosure required in order to decide whether a less intrusive
measure might suffice.
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