The Law Commission

PART VII INTERLOCUTORY PROCEDURES

Introduction

7.1      At present once leave to apply for judicial review is granted, the application is made by way of originating motion.^[1] The motion for hearing must be entered within 14 days after the grant of leave.^[2] The application for leave will be made ex parte in most cases.^[3] A respondent can only make representations at the original leave application if the applicant serves the respondent with proceedings or where the court adjourns the leave application to permit the respondent to make submission.^[4]
7.2      In Part V we recommended that the leave stage should be known as the preliminary consideration and that save in specified categories of cases this should always initially be a paper procedure. We have also proposed that when the application judge considers it appropriate the respondent should be sent a "request for information" form with the applicant's form 86A attached. If there is no "request for information" form or other notice of the application a respondent will not know what relief is being sought and the grounds upon which it is sought, until he is served with the Notice of Motion. Once a Notice of Motion is served the respondent has 56 days to file evidence in reply.^[5] The respondent is under a duty to make full and fair disclosure in his or her affidavit which should include the matters that he wants to put before the court for consideration when it is exercising its discretion as to whether to grant a remedy.^[6]
7.3      The principles applicable to interlocutory applications in judicial review proceedings are broadly similar to those in writ actions.^[7] In appropriate cases it is possible to obtain an order for discovery and interrogatories.

Discovery and Interrogatories

7.4      Order 53, rule 8 makes express reference to applications for discovery under Order 24^[8] and interrogatories under Order 26.^[9] The criterion for ordering discovery is that:

"No order ... shall be made ... unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs."^[10]

The application will be for an order requiring the other party to make and serve a list of documents which are, or have been, in their possession, with an affidavit verifjmg the list.^[11] Alternatively, if any document is referred to in the respondent's affidavit, the applicant may serve a notice requiring production of that document.^[12]

7.5      In O'Reilly v Mackman Lord Diplock described the discovery of documents as being obtainable in judicial review "upon application whenever, and to the extent that, the justice of the case requires".^[13] While this may suggest that discovery is available as in an ordinary writ action it has been argued that in judicial review the circumstances which justify the making of an order for discovery are more restrictive.^[14] This is said to flow from the supervisory nature of judicial review which means that normally not all aspects of the decision will be relevant to the issues before the court and it may be more difficult to show that the production of documents is necessary for disposing fairly of the matter. Accordingly, while relevance and necessity are judged to be the issues in both an ordinary writ action and an application for discovery in judicial review proceedings, in the latter it may sometimes only be ascertained by asking whether or not there is material before the Court which suggests the respondent's affidavit or record is not accurate.^[15]
7.6      An example of the preferred approach in judicial review proceedings is provided by R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses.^[16] In that case Lord Scarman stated:

"Upon general principles, discovery should not be ordered unless and until the court is satisfied that the evidence reveals reasonable grounds for believing that there has been a breach of public duty: and it should be limited strictly to documents relevant to the issue which emerges from the affidavits."

Lord Wilberforce, dealing with the more general principle of preventing abuse of discovery for the purposes of fishing for evidence, said:

" ... if as I think, the case against the revenue does not, on the evidence, leave the ground, no court, in my opinion, would consider ordering discovery against the revenue in the hope of eliciting some impropriety."^[17]

7.7      Thus, the court will not order discovery where the applicant claims that a decision is so unreasonable that it must be flawed and seeks discovery in the hope that it might turn up evidence to support another allegation, such as taking into account irrelevant considerations. ^[18] Although the suggestion that discovery should never be ordered in cases where the ground of challenge is Wednesbury unreasonableness or irrationality has not been accepted,^[19] in such cases a restrictive approach is taken. This circumspection, together with a denial of any general duty to give reasons,^[20] has created a climate considered unfavourable to applications for discovery in judicial review.^[21]
7.8      In our consultation paper we invited views as to whether there should be a more liberal regime for discovery in judicial review proceedings. Approximately a third of those who responded considered that the present approach was fully justified. The introduction of automatic discovery was widely disapproved but two-thirds of those who responded favoured the introduction of a more liberal regime for discovery.^[22] Many of those who responded to the consultation paper argued that, given the adversarial nature of the procedure and the fact that typically nearly all the relevant evidence is in the respondent's hands, the present rules relating to discovery operate harshly against applicants for judicial review. It was also pointed out that public interest immunity or confidentiality^[23] provide sufficient protection for respondents, usually the state,^[24] where matters of public interest are in issue.^[25]
7.9      One very experienced member of the Bar proposed that a respondent to an application for judicial review must provide any document that "may fairly lead the applicant to a train of enquiry which may either advance his own case or damage his opponent's''.^[26] It was also pointed out that now that it is becoming clearer that in some cases an individual may bring or defend an action concerned with public law issues in a writ action^[27]it is likely to lead applicants to litigate by a process in which they can expect a broader approach to discovery.
7.10      There is a danger that if the present more restrictive regime is not relaxed, it will eventually be said that the reforms to Order 53 have not remedied the defects in interlocutory process claimed in O'Reilly and courts may be forced to re-open the alternative route of civil proceedings for declarations and injunctions.^[28] It may thus be counter-productive for courts to emphasise the distinct nature of judicial review proceedings in the context of applications for discovery and other related interlocutory process.
7.11      In practice the requirement, which is mentioned in some recent cases^[29] that discovery will only be ordered where material before the court suggests the respondent's affidavit is not accurate constitutes an important limitation on discovery in judicial review proceedings. It is often the case that the only evidence that will enable the accuracy of an affidavit setting out the basis of a decision to be challenged is in the hands of the respondent.^[30] Accordingly, normally it will only be possible to challenge the accuracy of the respondent's affidavit where there is a patent contradiction or inconsistency in the respondent's affidavit. While discovery might also be ordered if the respondent has failed to make full and fair disclosure in their affidavit^[31] it may not always be possible to be confident about the quality of the affidavit without the benefit of discovery.
7.12      While accepting that discovery should not be obtained on a contingency basis in judicial review proceedings, we consider that requirements which mean that in practice there must be a contradiction or inconsistency in the respondent's affidavit before discovery is ordered are unduly restrictive and undermine the basic test of relevance and necessity laid down in O'Reilly v Mackman. As, however, these requirements are not imposed by Order 53 rule 8(1) (Draft Order 53 rule 9(1)), but are the product of recent case law,^[32] we do not consider it appropriate to recommend an amendment to the Rules. In any event it would be difficult to amend the existing rule so as to achieve a slightly more liberal application and also to exclude a requirement of contradiction or inconsistency in the respondent's affidavit without distorting the expeditious special procedure which Order 53 was designed to provide. We believe consideration should be given to issuing a Practice Direction on this matter.

Note 1   The applicant must serve a Notice of Motion (O 53, r 5(3)) and Form 86A (O 53, r 6(1)). Documents should be served on the respondent and all persons “directly affected” (O 53, r 5(3). In cases of difficulty, the applicant should seek directions as to the identity of those who should be served: R v Minister of Agriculture Fisheries and Food, ex p Roberts [1991] 1 CMLR 555.    [Back]

Note 2   O 53, r 5(5). Before this can be done the applicant must file an affidavit of service (O 53, r 5(6)).    [Back]

Note 3   The applicant sometimes serves the respondent with the proceedings so that if the respondent appears there is an ex parte hearing on notice. The court may also ask the respondent to attend the leave application of its own initiative.    [Back]

Note 4   The respondent may apply to set aside the grant of leave: R v Secretary of State for the Home Department, ex p Herbage (No 2) [1987] QB 1077. See para 9.5 on appeals.    [Back]

Note 5   O 53, r 6(4). Before 1989 the time limit for respondent’s evidence was 21 days but see Practice Note [1989] 1 WLR 358. If the court orders an expedited hearing, it may direct a shorter period for filing evidence in reply.    [Back]

Note 6   R v Lancashire County Council, ex p Huddleston [1986] 2 All ER 941.    [Back]

Note 7   Apart from powers which enable the court to allow an applicant to amend proceedings (O 53, r 6(2) or O 20, r 8) any party can apply to the Crown Office Master to “stand the case out” if the case is being settled or if the parties are not ready.    [Back]

Note 8   O 24, r 3. The order may extend to any documents which are or have been in the possession of another party relating to any matter in question in the application for judicial review.    [Back]

Note 9   O 26 allows interrogatories without an order to be served not more than twice, although no interrogatories may be served on the Crown without leave.    [Back]

Note 10   O 24, r 13(1).    [Back]

Note 11   O 24, r 3.    [Back]

Note 12   O 24, r 10(1). If this is refused the applicant may apply for an order that the documents be produced for inspection: O 24, r 11(1).    [Back]

Note 13   [ 19831 2 AC 237 at 282. See also R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 635, 654 (Lord Wilberforce and Lord Scarman), R v Secretary of State for the Home Department, ex p Herbage (No 2) [1987] QB 1007.    [Back]

Note 14   It has often been said that discovery will not be ordered as a “fishing expedition” ie to see if there was a flaw in the manner of the decision making process, see for example: R v Secretary of State for the Home Office, ex p Harrison [1988] 3 All ER 86 (DC) and 10 December 1987 (CA); R v Secretary of State for the Environment, ex p Doncaster BC [1990] COD 441. R v Inland Revenue Commissioners, ex p Taylor [1989] 1 All ER 906.    [Back]

Note 15   R v Secretary of State for the Home Department, ex p BH [1990] COD 445; R v Secretary of State for the Environment, ex p Islington LBC and London Lesbian and Gay Centre, [1992] COD 67 (CA); R v Secretary of State for Education, ex p J [1993] COD 146.    [Back]

Note 16   [1982] AC 617, 654E-F.    [Back]

Note 17   Ibid, p 635H.     [Back]

Note 18   R v Secretary of State for the Home Office, ex p Harrison [1988] 3 All ER 86, (DC) 10 December 1987 (CA); R v Secretary of State for the Environment, ex p Islington LBC and London Lesbian and Gay Centre, [1992] COD 67 (CA); R v Secretary of State for Health, ex p Hackney LBC and others (DC) 20 and 25 April 1994.    [Back]

Note 19   R v Secretary of State for Transport, ex p APH Road Safety Ltd. [1993] COD 150 (Schiemann J).    [Back]

Note 20   On the scope of the duty to give reasons and recent developments see paras 2.29 - 2.31 above.    [Back]

Note 21   This adverse climate was noted by the Justice-All Souls Review of Administrative Law in the United Kingdom, (1988), para 6.32.    [Back]

Note 22   A number of consultees favoured developing a questionnaire, along the lines of that used in discrimination law cases (Sex Discrimination Act 1975, s 74 and the Race Relations Act 1976, s 65). Under these procedures the alleged discriminator is warned that any refusal to reply or any evasive or equivocal reply may lead to adverse inferences being drawn. This option was advocated as a form of pre-leave discovery, see paras 5.28 - 5.37 above.    [Back]

Note 23   As in Science Research Council v Nasse [1980] AC 1028.    [Back]

Note 24   Discovery is available against the Crown: see the Crown Proceedings Act 1947, s 28.    [Back]

Note 25   The courts will not order discovery where the public interest in the proper functioning of a body performing public functions requires non-disclosure, and that public interest outweighs the public interest in full disclosure to ensure the proper administration of justice: Burmah Oil Co Ltd v Governor and Company of the Bank of England [1980] AC 1090; Air Canada v Secretary of State for Trade [1983] 2 AC 394; R Chief Constable of the West Midlands Police, ex p Wiley [1994] 3 WLR 433 (HL).    [Back]

Note 26   Robin Allen, “Discovery” (Cambridge Conference on Consultation Paper No 126, Judicial Review and Statutory Appeals - May 1993). See Megarry J in Rockwell Machine Tool Co Ltd v EP Barns (Concessionaires) Ltd [1968] 2 All ER 98 quoting Brett LJ in Compagnie Financiere et Commerciale du Pacifque v Peruvian Guano Co (1882) 11 QBD 55, 63.    [Back]

Note 27   See Roy v Kensington and Chelsea and Westminster FPC [1992] 1 AC 624 and see paras 3.8 - 3.1 1 above).    [Back]

Note 28   Barnard v National Dock Labour Board [1953] 2 QB 18, 43 was an example of discovery bringing the ultra vires nature of a decision to light. For a modern example see R v Department of Health, ex p Gandhi [1991] ICR 805 (documents produced in county court proceedings disclosed a procedural impropriety)    [Back]

Note 29   See n 18 above.    [Back]

Note 30   R v Lancashire County Council, ex p Huddleston [1986] 2 All ER 941, 945 (Sir John Donaldson MR). See also, in the context of discrimination, West Midlands Passenger Transport Executive v Jaquant Singh [ 19881 ICR 6 14, 618.    [Back]

Note 31   R v Lancashire County Council, ex p Huddleston [1986] 2 All ER 941, 947 (Parker LJ). For examples of where the courts have criticised the respondent’s affidavits, see R v Secretary of State for the Home Department, exp Bugdaycay [1987] AC 514, 533 (“...at worst self-contradictory, at best, ambiguous...”) and R v IRC, ex p TC Coombs & Co [1991] 2 AC 283, 288-289, 290, 300, 302 (per Lord Mackay of Clashfern LC, Lord Jauncey and Lord Lowry).    [Back]

Note 32   But cf R v Secretary of State for Transport, ex p APH Road Safety Ltd [ 1993] COD 150 (Schiemann J was not willing to accept further restrictions).    [Back]