High Court of Justice in Northern Ireland Queen's Bench Division Decisions

"Where a public authority relies on a document as significant to its decision it is ordinarily good practice to exhibit it to the primary evidence. Any summary, however conscientiously and skilfully made, may distort. But where the authority's deponent chooses to summarise the effect of a document it should not be necessary for the applicant seeking sight of the document to suggest some inaccuracy or incompleteness in the summary, usually an impossible task without sight of the document. It is enough that the document itself is the best evidence of what it says. There may however be reasons (arising, for example, from confidentiality, or the volume of the materials in question) why the documents should or need not be exhibited. The judge to whom application for disclosure is made must then rule on whether, and to what extent, disclosure should be made".

"I do consider, however, that it would now be desirable to substitute for the rules hitherto applied a more flexible and less prescriptive principle, which judges the need for disclosure in accordance with requirements to the particular case, taking into account the facts and circumstances. It will not arise in most applications for judicial review, for they generally raise legal issues which do not call for disclosure of documents".

Lord Carswell concludes at paragraph 41 of the judgment that he would have ordered disclosure of the documents in issue in the Tweed case. Much of the contents of the documents appeared to have been based on information and opinions obtained on the basis of assurances of confidentiality and it is stated -

"I think that the judge considering disclosure should first receive and inspect the full text of all the documents …. so that he may decide whether they would give sufficient extra assistance to the appellants' case on proportionality, ( being the issue in the case) over and above the summary already furnished, to justify its disclosure in the interests of fair disposal of the case. If he does so decide, then the question of redaction may have to be considered, in which the parties may be invited to make submissions to the court. If he decides to the contrary in the case of any of the documents, the documents will not be disclosed to the appellant. Only after this has been settled should the question of public interest immunity receive any necessary consideration."

[9] Thus a number of steps arise in the process of disclosure. First, if a document is of significance to a decision it is good practice to exhibit it as primary evidence. Secondly, there may be reasons to retain the document from disclosure, or parts of it, perhaps on the grounds of confidentiality or the volume of the material in question, and if that is the position then the matter will be referred to the judge to decide whether or not the summary in the respondent's affidavits is sufficient to meet the case or whether the documents ought to be disclosed in the interests of fairness and justice. Thirdly, if disclosure is required then the question of redaction might arise, perhaps because of confidentiality or for any other reason and the Judge may hear argument in relation to redaction. Fourthly public interest immunity might arise for consideration by the Judge. There has thus been a change from the former restrictive approach to the present more flexible approach.

"(1) Subject to paragraph 2, information furnished for the purposes of this part to the Law Society or to any committee or person on their behalf in connection with the case of a person seeking or receiving legal aid, advice or assistance shall not be disclosed otherwise than:

(a) for the purpose of facilitating the proper performance by any committee, court, tribunal or other person or body of persons or functions under this Part; or

(b) for the purpose of any criminal proceedings for an offence thereunder or of any report of such proceedings. "

Paragraph 2 provides that disclosure may be made by consent.