"Significant lack of candour"

hometruths

There was a case in the news recently in which the judge said one of the parties was guilty of a significant "lack of candour."

In plain English that is the same as lying to or at least deliberately misleading the court.

It does not appear that there are any consequences to this (other than losing the case obviously).

Is this correct? Surely there should be some disincentive to misleading courts?

coylemj

Usually impossible to prove - one man's word against the other which would never achieve a conviction for perjury.

'Lack of candour' sounds more like evasion and leaving out inconvenient facts rather than straight lies. Though the part of the oath whereby you swear to tell 'the whole truth' means that you would be in breach of the oath if you deliberately withheld relevant facts but again, impossible to prove to the level required for a conviction.

Judges have various ways of describing it though the recent spate of people getting into the witness box and swearing that they never received speeding fine notices in the post has been the straw that broke the camel's back and more than one judge has come straight out and said that the courtroom stank of perjury!

GM228

coylemj wrote: »

more than one judge has come straight out and said that the courtroom stank of perjury!

Like this:-

https://www.irishtimes.com/news/crime-and-law/courts/district-court/nothing-as-appalling-as-a-liar-driver-committed-perjury-judge-1.2928295?mode=amp

Perjury is very difficult to prove as it's a crime of intent and requires under common law at least two witnesses to corroborate the falsehood of the testimony made on oath or another witness with additional substantial corroborative evidence.

seamus

It's a bit of a catch-all; it doesn't necessarily refer to honesty specifically, but can also refer to openness, co-operation, non-bias, etc. So a "lack of candour" may indicate someone who is evasive or clearly biased towards one viewpoint.

The word comes from the same Latin root as "Candle", meaning "to shine".

So it's a word that's hard to boil down to "plain english" because in effect a "lack of candour" means, "not shiny", which speaks to someone's character and integrity as much as the things they've actually said.

Perjury is an offence, but very very rarely one that anyone is charged with.

GM228

Back to the original question, a lack of candour could be a failure of the so-called "Duty of Candour" in a Judicial Review for example - a duty to make a full and fair disclosure of relevant facts which are reasonably required for the court to arrive at an accurate decision.

coylemj

If you ask me it's just a verbose version of 'evasive'.

hometruths

GM228 wrote: »

Back to the original question, a lack of candour could be a failure of the so-called "Duty of Candour" in a Judicial Review for example - a duty to make a full and fair disclosure of relevant facts which are reasonably required for the court to arrive at an accurate decision.

That's exactly what it was. If applicants to the court have a duty to make a full and fair disclosure, and the judge finds that they deliberately have not, I am surprised there is no sanction.

Victor

coylemj wrote: »

If you ask me it's just a verbose version of 'evasive'.

Not necessarily. Evasive suggests a behaviour in the middle of an action.

In a commercial case a plaintiff could, from the start, state only their side of a dispute and negate to mention that their own behaviour is the fundamental cause of the dispute. The judge might see a "Why do you look at the speck of sawdust in your brother's eye and pay no attention to the plank in your own eye? situation.

GM228

schmittel wrote: »

That's exactly what it was. If applicants to the court have a duty to make a full and fair disclosure, and the judge finds that they deliberately have not, I am surprised there is no sanction.

The Duty of Candour is self policing, however a sanction could be the striking out of proceedings or a detrimental effect on the outcome of the case as a lack of candour must be relevant to any question of relief.

Peregrinus

schmittel wrote: »

There was a case in the news recently in which the judge said one of the parties was guilty of a significant "lack of candour."

In plain English that is the same as lying to or at least deliberately misleading the court.

It does not appear that there are any consequences to this (other than losing the case obviously).

Is this correct? Surely there should be some disincentive to misleading courts?

The sanction is that you lose your case and have costs awarded against you.

If your lack of candour is really egregious, as GM228 points out, there's the possibility of having your case struck, even before trial, out as an abuse of process.

And in a really, really bad case, there's the possibility of being found in contempt, and being sanctioned for that.

But all these sanctions have to be used sparingly. In a democracy, citizens have a right of access to the courts and, while you don't want that right to be abused, you also don't want to discourage people from exercising that right by making it unduly hazardous or risky.

NUTLEY BOY

Some judges like to use coded linguistic euphemisms as distinct from calling a witness a blatant liar. If a judge was totally convinced that a witness was lying that might be investigated with a view to prosecution for perjury. Some witnesses' deficiencies may not rise to the level of perjury or they can be just plain wrong in their evidence.

The fact that witness was wrong, or that their evidence was rejected, does not raise an automatic assumption, or suspicion, of perjury or dishonesty.

Popular euphemisms might include ;

1. I consider that witness X's evidence was to be preferred to that of W.

2. Witness W's recollection of events appears to be defective. ( My favourite )

3. I do not find witness W's evidence to be convincing / reliable on issues A and B....

Remember that a witness undertakes to tell the truth, the whole truth and nothing but the truth. The whole truth element is where I have seen considerable problems as where everything the witness said was true but their evidence was blatantly misleading by virtue of what they knew but omitted to say when the question warranted full revelation on direct examination. Scorching such witnesses on cross-examination by presenting them with their omissions usually sorts them out and torpedoes credibility.;)

Peregrinus

NUTLEY BOY wrote: »

Some judges like to use coded linguistic euphemisms as distinct from calling a witness a blatant liar. If a judge was totally convinced that a witness was lying that might be investigated with a view to prosecution for perjury. Some witnesses' deficiencies may not rise to the level of perjury or they can be just plain wrong in their evidence.

The fact that witness was wrong, or that their evidence was rejected, does not raise an automatic assumption, or suspicion, of perjury or dishonesty.

Popular euphemisms might include ;

1. I consider that witness X's evidence was to be preferred to that of W.

2. Witness W's recollection of events appears to be defective. ( My favourite )

3. I do not find witness W's evidence to be convincing / reliable on issues A and B....

I don't think these are euphemisms for "blatant liar"; they mean the witnesses evidence is not reliable, or less reliable, but as you point out yourself that is entirely consistent with complete honesty. Witnesses often contradict one another, and nine times of of ten (or more often) the reason is not dishonesty but mistake, confusion, misrecollection, delusion, denial, etc.

The judge, in principle, isn't primarily concerned to know whether a witness is lying; he's concerned to know how much credibility is to be attached to his evidence. Once he concludes that his evidence is no reliable, or less reliable, the reason why is a secondary issue; it's not relevant to the issue before him, which is to determine the truth about whatever it is the trial is about. Judges are not policemen; they don't investigate or look for crimes, and most of the time a judge will avoid making any inferences as to the honesty of a witness unless its relevant to the issues before him, or unless dishonesty is very blatant.

Also worth pointing out that the OP relates to comments made by a judge about the parties in a case, not the witnesses. Of course, parties can be witnesses as well, but as parties they put a lot of matter before the court which is not in the form of evidence - e.g. assertions or claims made in pleadings. An observation that the parties lack candour could refer to the way they have presented their case to the court in pleadings, rather than to the evidence they gave. Statements in pleadings, if untrue or misleading, may amount to abuse of process or contempt of court, but they are not perjury because they are not given in evidence.