The court considered the test to be applied before a document could be ordered to be discovered.
Held: (Majority) Discovery is an exception to the adversarial character of the legal process. It assists both the parties and the court to discover the truth. By so doing, it not only helps towards a just determination; it also saves costs. A party who discovers timeously a document fatal to his case is assisted as effectively, although less to his liking, as one who discovers the winning card; for he can save himself and others the heavy costs of litigation.
The House was divided on the question whether, before inspection is ordered, the documents should appear likely to support the case of the party seeking discovery, or whether it is enough that they should appear likely to assist any of the parties to the proceedings; the majority favoured the first view.
The purpose of discovery is to assist the parties as well as the Court in determining the truth and by doing so, not only help to discover the truth and make a just determination of the case, but also save costs.
Where a prima facie case of public interest immunity is made out, a party who wishes to invite the court to inspect material before determining whether it should after all be deployed must show that it is likely to give substantial support to his or her case. However, public interest immunity is not a privilege, which may be waived by the Crown or by any party.
Lord Wilberforce described the duty of the court to litigants: ‘In a contest purely between one litigant and another, such as the present, the task of the court is to do, and be seen to be doing, justice between the parties – a duty reflected by the word ‘fairly’ in the rule. There is no higher or additional duty to ascertain some independent truth. It often happens, from the imperfection of evidence, or the withholding of it, sometimes by the party in whose favour it would tell if presented, that an adjudication has to be made which is not, and is known not to be, the whole truth of the matter: yet if the decision has been in accordance with the available evidence and with the law, justice will have been fairly done.’
When considering the ordering of discovery for which immunity is claimed, there must be something beyond speculation, some concrete ground for belief which takes the case beyond a mere fishing expedition.
Lord Fraser of Tullybelton discussed the circumstances in which a judge should inspect documents in order to decide whether or not a public interest immunity is made out, and said: ‘The test is intended to be fairly strict. It ought to be so in any case where a valid claim for public interest immunity has been made. Public interest immunity is not a privilege which may be waived by the Crown or by any other party.’
Lord Scarman said that the Crown, when it puts forward a public interest immunity objection, ‘is not claiming a privilege but discharging a duty’.
It is not for the Crown but for the Court to determine whether the document should be produced, and ‘In my judgment documents are necessary for fairly disposing of a cause or for the due administration of justice if they give substantial assistance to the court in determining the facts on which the decision in the cause will depend.’
Lord Wilberforce, Lord Scarman, Lord Fraser of Tullybelton
[1983] 2 AC 394, [1983] 1 All ER 161, [1983] 2 WLR 494
England and Wales
Citing:
Cited – Regina v Lewes Justices ex parte Secretary of State for the Home Department; Rogers v Home Secretary HL 1972
The House considered a claim for public interest immunity.
Held: Lord Simon of Glaisdale said: ‘the public interest which demands that the evidence be withheld has to be weighed against the public interest in the administration of justice that . .
Cited by:
Cited – Adelson and Another v Associated Newspapers QBD 19-Feb-2008
Complaint was made that an article was defamatory of the owner of Manchester United. The defendant now argued that the game was not worth the candle. The costs vastly exceeded any possible recovery, and it had openly offered vindication, and that . .
Cited – In re an Inquiry Under The Company Securities (Insider Dealing) Act 1985 HL 1988
The term ‘necessary’ will take its colour from its context; in ordinary usage it may mean, at one end of the scale, ‘indispensable’ and at the other ‘useful’ or ‘expedient’.
Lord Griffiths said: ‘What then is meant by the words ‘necessary . . . .
Cited – Al Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Constitutional, Evidence
Leading Case
Updated: 11 November 2021; Ref: scu.278225
