Judgment: approved by the Court for handing down
(subject to editorial corrections)
This is an appeal, brought by leave, against an order of Coghlin J made on 13 September 2000, whereby he ordered that the appellant body, the Equality Commission for Northern Ireland (the Commission), should make discovery of a category of documents described as –
"any documents containing written advice or assistance from the Commission staff which the Commissioners took into account for their purpose of coming to their decision on 22 November 1999."
The respondent company Belfast Telegraph Newspapers Limited (the Company) is the printer and publisher of a number of newspapers circulating within Northern Ireland. At the time material to these proceedings it employed a total number of employees which fluctuated between 570 and 580 approximately. By letter dated 2 July 1999 the Commission's predecessor the Equal Opportunities Commission for Northern Ireland informed the Company that it was minded to embark upon a formal investigation under the powers conferred upon it by Article 57 of the Sex Discrimination (Northern Ireland) Order 1976 (the 1976 Order) into the Company's acts in the respects set out in terms of reference enclosed with the letter. The statement of facts and matters which also accompanied the letter referred to a number of specific matters relating to promotion and recruitment of staff and their terms of service, which the Commission wished to investigate. As appeared from subsequent correspondence, the proposed investigation stemmed from the receipt of complaints from a number of employees who claimed that they had been discriminated against.
The Commission nominated two of its members, Ms Ann Hope and Mr Harry Coll, to carry out the investigation and receive representations from the Company. The Company sent written representations to the Commission on 20 August 1999, and a meeting was held on 10 September 1999 between representatives of the Commission and the Company. Those who attended on behalf of the Commission were the two nominated Commissioners and three members of the Commission's staff, who were introduced respectively as Mrs Joan McKiernan, Director of Investigations and Resource, Ray Russell, Investigation Officer, and Ms Sheila McGivern, Legal Officer. These members of staff were present throughout the meeting and, according to the affidavit sworn on 22 February 2000 by Mr Derek Carvell, Managing Director of the Company, Mrs McKiernan took an active part in the proceedings. The Company furnished further information to the Commission on 15 September 1999.
By letter dated 23 November 1999 the Commission informed the Company that it had decided to proceed with a formal investigation to ascertain further facts relevant to the terms of reference. It had eliminated item (vi) from the terms of reference, on consideration of the facts furnished by the Company, but proposed to proceed in respect of the other items. Mr Carvell replied by letter of 10 December 1999, asking the Commissioners for "the detailed grounds on which their decision is based," and wishing to know the facts and matters forming the basis of their belief that a formal investigation was justified. There followed correspondence between the Company and the Commission, in which the Commission restated its position at some length and the Company constantly repeated the complaint that it had not furnished the reasons sought.
On 22 February 2000 the Company commenced proceedings for judicial review of the Commission's decision to hold a formal investigation. The grounds for the application, as set out in its Order 53 statement, were as follows:
"3. The grounds upon which the said relief is sought are:-
(a) that the Equality Commission did not and could not at the time it made a decision to embark upon a formal investigation of the Applicant pursuant to article 57 of the Sex Discrimination (Northern Ireland) Order 1976 have held the requisite belief that the Applicant may have done or may be doing any of the unlawful acts described in the terms of reference;
(b) the Equality Commission for Northern Ireland failed to take any or adequate account of the representations and materials submitted to the Commission on behalf of the Application prior to making the said decision;
(c) the Equality Commission for Northern Ireland failed to disclose to the Applicant any facts, information or basis for the alleged belief thereby unfairly depriving the Applicant of a proper opportunity to address the basis of the Commission's alleged belief and the basis upon which the Equality Commission of Northern Ireland made its decision;
(d) that the Commission wrongly allowed and permitted persons other than the Commissioners nominated by the Commission to participate in a preliminary investigation of the Applicant and to participate in and influence the decision of the Commission."
The application was grounded upon the affidavit of Mr Carvell sworn on 22 February 2000. The material part of his affidavit for the purposes of this appeal is contained in paragraph 8:
"Furthermore, I am concerned by the presence at the meeting of three persons other than the nominated Commissioners and the participation of one of those persons, Mrs Joan McKiernan, in that meeting. Those persons were present for a purpose and I am concerned that they thereby participated in the preliminary part of the investigation and may have participated in or influenced the decision of the nominated Commissioners for the Commission to proceed to a full investigation."
An affidavit was sworn in reply by Mr Harry Coll on 13 April 2000. In paragraph 17(d) he dealt with the averment in Mr Carvell's affidavit to which we have referred:
"(d) The meeting of 10th September 1999 was attended by three members of the Commission staff in addition to the nominated Commissioners. The said staff had a role to assist and provide advice to the nominated Commissioners as and when we required. The nominated Commissioners believe that we were entitled to call on the assistance and expertise of the staff during the conduct of the Investigation delegated to us by the Commission, and to have such staff attend the meetings conducted with the Applicant's representatives, and carry on correspondence between the Commission and the Applicants. Whilst the Commissioners did receive advice and assistance from Commission staff, we nonetheless were alive to the fact that the decision whether or not to launch a full investigation was our decision, and we did not delegate such decision to anyone else."
An affidavit was also sworn by Ms Ann Hope confirming and adopting the contents of Mr Coll's affidavit.
The Company then sought discovery of documents from the Commission. By letter dated 4 May 2000 its solicitors set out four classes of documents which they sought:
"1. All complaints received by the Commission and to which reference is made in paragraph 6 of the Affidavit of Mr Coll.
2. The legal advice obtained by the Commission and to which reference is made in paragraph 7 of Mr Coll's Affidavit.
3. All documents considered by and all recordings of the meeting of the Commission which took place on 22nd November 1999, and to which reference is made in paragraph 13 of Mr Coll's Affidavit.
4. All documents relating to the assistance, expertise and advice provided to the nominated Commissioners by the Commission staff and to which reference is also made in paragraph 17(d) of Mr Coll's Affidavit."
The Commission replied briefly to the effect that any application for discovery would be resisted. An affidavit was sworn by Mr AP Martin, a partner in the firm of solicitors acting for the Company, giving reasons for seeking these classes of documents. Paragraph 7 contains the averments material to this appeal:
"In paragraph 17 of Mr Coll's affidavit it is clear that the nominated Commissioners met with 3 members of the Commission's staff. He acknowledges that they provided advice and other assistance to the nominated Commissioners '… as and when we required'. It is clear from the transcript of the meeting between the Respondent and the Applicant that the Commission staff took an active role in the proceedings. I verily believe that such staff should not have adopted such role and that the investigations or enquiries, if any, prior to deciding whether to carry out a preliminary or full investigation should have been undertaken exclusively by the nominated Commissioners. The Respondent acknowledges that assistance and advice was provided to the Commissioners. The Applicant cannot be aware of the nature of such assistance and advice and same can only be tested and considered following disclosure of any record, note, minute or other material concerning this meeting or any meeting held which involved the support staff and the nominated Commissioners."
In a replying affidavit Mr Coll repeated the averment that the decision to investigate was taken solely by the Commissioners.
The application for discovery was heard by Coghlin J on 8 November 2000, when he adjourned the issue of discovery of the first class of documents pending the substantive hearing and refused discovery of the second and third classes. In respect of the fourth class, the judge set out paragraph 17(d) of the affidavit of Mr Coll to which we have referred, and continued:
"It is not clear to me that he is saying there that we received advice and assistance from Commission staff only on this occasion. Advice and assistance from Commission staff might undoubtedly constitute material which would have been or could have been acted upon by him and indeed it is difficult to see why he should receive advice without taking it into account either to reject it or to accept it and the same goes for assistance. Accordingly, I will make an order discovering to the Applicants, any documents containing written advice or assistance from the Commission staff which the Commissioners took into account for the purpose of coming to their decision on 22nd November 1999. I do not limit that to the meeting of 10th September 1999.
I should perhaps say for the purpose of the record that I make that ruling on two grounds. First of all on the general ground that I feel that any such advice and assistance should have been disclosed in accordance with the 'having all cards on the table' approach and secondly, insofar as it is necessary to do so, I also make it is on the basis that the affidavit is incomplete by referring to materials that were taken into account but not disclosed."
The appeal to this court was directed towards the judge's order in respect of the fourth class. No argument was advanced by either party in respect of any of the other classes, and we shall not express any opinion on them.
The principles governing discovery in judicial review matters were fully considered by this court in Re McGuigan's Application  NI 143 and Re Rooney's Application  NI 398, and it is unnecessary to do more than summarise the conclusions of the court in those cases. I set them out in a series of propositions in my judgment in Re Rooney's Application at pages 413-4, and repeat them here for convenience:
" 1. The court has a discretion under RSC (NI) 1980, Ord 24, r 3 to order discovery, either general or of particular documents or classes of documents, but under r 9 is to refuse to make an order if satisfied (the onus being on the party from whom discovery is sought) that discovery is not necessary either for disposing fairly of the matter or for saving costs.
2. Discovery may be ordered in applications for judicial review, but because of the nature of the issues and the remedies available to an applicant it is more restricted than in ordinary actions, both in respect of the occasions on which it will be ordered and the extent to which discovery is be made.
3. It is essential to examine carefully the issues which arise in any particular application for judicial review, to ascertain whether discovery is necessary for the resolution of some issue arising in the application.
4. Unless there is some prima facie case for suggesting that the evidence relied on by the deciding authority is in some respects incorrect or inadequate it is improper to allow discovery of documents, the only purpose of which would be to act as a challenge to the accuracy of the affidavit evidence.
5. The conclusion, as expressed by Hutton LCJ in Re McGuigan's Application (at 154), is that –
'…if, after the respondent has delivered his replying affidavit, the applicant, upon whom the onus rests of proving that the respondent has acted improperly, is unable to point to any material which suggests that the respondent has acted improperly in coming to his decision, but merely states that he suspects impropriety, the court will conclude that 'discovery is not necessary … for disposing fairly of the cause'.'"
In the immediately succeeding passage at pages 414-5 I went on to discuss the doubts which had been expressed in some cases about the validity of some of the propositions advanced in previous English cases. I alluded to the difficulty, shared by Kerr J at first instance in Re Rooney's Application, in drawing an entirely valid distinction between judicial review applications and actions commenced by writ of summons. I concluded, however, at page 415:
"Sir Thomas Bingham MR observed that the same [the prohibition against fishing applications for discovery] applies equally in an ordinary action, but it may well be rather more difficult for the party attempting to resist discovery in such an action to show that no real issue has been shown to exist. In an application for judicial review it can quite frequently be seen when the affidavits have been filed that the applicant has not established any prima facie ground for impugning the decision-making process. The courts have consistently refused to order discovery in such cases, by imposing a limitation on the extent to which it will be permitted, in the manner which I set out in my fourth proposition. That limitation is in my opinion by now too solidly embedded in the law, both in this jurisdiction and in England, for it to be right for this court to attempt to depart from it, and I consider that we must continue to follow it."
Mr Lavery QC on behalf of the Company was critical of the role which the members of the Commission's staff played in advising the Commissioners when they were making their decision. He suggested in his skeleton argument and again in oral submissions that they should not have been permitted to participate in the preliminary investigation of the Company or to give advice or express views which might influence the Commissioners' decision. This is to misapprehend the nature of the function of senior members of staff in such a body as the Equality Commission. They may properly be entrusted with the responsibility of carrying much of an investigation, by delegation from the Commission, as was held in R v The Commission for Racial Equality, ex parte Cottrell and Rothon  IRLR 279. They may also in my opinion conduct preparatory work for the Commissioners who have to make the decision in question, in the course of which they may well express their views. This is a well recognised part of the work of senior officers in all branches of the public service. The deciders may be influenced by those views and may rely quite heavily upon their officers' advice, based upon their experience and judgment. The important matter, however, is that in the end the deciders reach their own decision, accepting whatever opinions and arguments they think fit from their officers, but making up their own minds at the conclusion of the process. Mr Coll has deposed unequivocally that the decision to launch the investigation was that of the two Commissioners and was not delegated to anyone else. There is nothing in the material before us which might tend to throw doubt upon that averment or show that the Commissioners failed to appreciate their proper function and that of the members of their staff. In these circumstances I consider that the Company's challenge has failed to pass the test formulated by Brooke J in R v Secretary of State for Education, ex parte J  COD 146, passing the threshold of identifying some material which suggested that Mr Coll's averment was incorrect.
It was submitted, however, on behalf of the Company that the rules governing discovery in judicial review applications, in so far as they were more restrictive than those in actions brought by writ of summons, could not be sustained in the light of Article 6(1) of the European Convention on Human Rights, as now applicable under the Human Rights Act 1998. It was contended that the entitlement to a fair hearing encompassed the discovery of relevant documents: see, eg, McGinley and Egan v United Kingdom (1998) 27 EHRR 1. Mr Barry Macdonald QC argued on behalf of the Commission, however, that the provisions of Article 6(1), which extend only to cases involving the determination of a litigant's civil rights and obligations, do not apply to those in issue in the present proceedings.
The definition of "civil rights" for the purposes of Article 6(1) is a notoriously difficult area of law, as the discussion in the leading commentaries demonstrates. Two principles do appear to be established by the authorities:
1. There must be a "contestation" or dispute at the national level over civil rights and obligations recognised under domestic law.
2. The result of the proceedings involving determination of those rights must be directly decisive, mere tenuous connections or remote consequences not being sufficient to bring Article 6(1) into play.
Beyond these principles, the question whether the rights must be of a private law nature, as distinct from those appertaining purely to public law, is one attended by considerable difficulty, to which a clear and concluded answer may not be possible in the present state of the authorities: see the discussion in Clayton & Tomlinson, The Law of Human Rights, paras 11.164 et seq.
Some assistance may be obtained from contrasting the decisions of the European Court of Human Rights in Le Compte v Belgium (1981) 4 EHRR 1 and Fayed v United Kingdom (1994) 18 EHRR 393. In the Le Compte case it was held that Article 6 applied to the proceedings before a medical disciplinary tribunal which had suspended the applicant doctors, because those proceedings were directly decisive of the applicants' private law right to practise medicine. In the Fayed case the Court held that the object of the proceedings before inspectors appointed by the Government to investigate the affairs of House of Fraser Holdings plc was essentially investigative, not determinative, and that their report was not directed towards resolving a dispute (contestation) between any parties. As the Court said in paragraph 61 of its judgment:
"The purpose of their inquiry was to ascertain and record facts which might subsequently be used as the basis for action by other competent authorities – prosecuting, regulatory, disciplinary or even legislative."
It seems to me that the present proceedings fall into the category represented by Fayed v United Kingdom rather than Le Compte v Belgium. The immediate proceedings are to determine the validity of the Commission's decision to proceed to hold an investigation under Article 57 of the 1976 Order. The outcome of those proceedings would settle only the issue whether the investigation should proceed. The investigation itself would not determine any lis between the Company and the Commission or between the Company and employees who complained of discriminatory treatment. It would at most lead to the making of a report and possibly recommendations under Article 60 of the 1976 Order, neither of which would determine any rights, though they might cause others to take action leading to such a determination. I accordingly do not consider that Article 6 applies to the present proceedings.
I would allow the appeal and vary the judge's order so as to refuse discovery of the documents comprised in the fourth class.