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Cite as: [1979] UKHL 9, [1979] 3 WLR 762, [1979] IRLR 465, [1979] ICR 921, [1979] 3 All ER 673, [1980] AC 1028

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Nassé v Science Research Council (SRC) [1979] UKHL 9 (01 November 1979)

HOUSE OF LORDS

Thursday 1st November 1979.

	NASSÉ	Appellant
	v.
	SCIENCE RESEARCH COUNCIL	Respondents

	And

	VYAS	Appellant
	v.
	LEYLAND CARS (B L CARS LIMITED)	Respondents

Dates of hearing: June 5, 6, 7, 11, 12, 13. 14 and 18, 1979

Counsel for the Appellant Nasse: Mr. R.I. KIDWELL, Q.C., and Mr. F. REYNOLDS
Solicitors: Messrs. Lawford &. Co.

Counsel for the Respondents Science Research Council: Mr. T.H. BINGHAM, Q.C. Mr. P.L. GIBSON and Mr. D.J. BLUNT.
Solicitor: The Treasury Solicitor.

Counsel for the Appellant Vyas: Mr. A.P. LESTER, Q.C., and Mr. F. REYNOLDS
Solicitors: Messrs. Bindman & Partners.

Counsel for the Respondents Leyland Cars (B L Cars Limited): Mr. R.S. ALEXANDER, O.C., and Mr. M, Howard
Solicitor: Mr. R.P.A. Coles.

Lords Present:

Lord Wilberforce
Lord Salmon
Lord Edmund-Davies
Lord Fraser of Tullybelton
Lord Scarman

Lord Wilberforce

My Lords,

Mrs. Nassé and Mr. Vyas, who are the two appellants in these conjoined appeals, have complained to industrial tribunals of discrimination against them by their employers.

Mrs. Nassé was employed as a clerical officer by the Science Research Council ("S.R.C.") a body incorporated by Royal Charter. She sought, unsuccessfully, promotion to the grade of executive officer and complained, originally, that she had been discriminated against on the ground of her activities in her trade union. Later she added a complaint of discrimination under the Sex Discrimination Act 1975.

Mr. Vyas was employed as a method analyst by Leyland Cars (BL Cars Limited) - "Leyland". He sought, unsuccessfully, a level transfer to another division in the company, and complained of discrimination on racial grounds: he is of Asian origin.

Each appeal raises the question whether and to what extent a complainant under the Employment Protection Act 1975, or the Sex Discrimination Act 1975 or the Race Relations Act 1976, may obtain discovery and inspection of documents, and, in particular, whether she or he is entitled to see confidential assessments, references, reports or other documents relating to the complainant and to other persons, particularly those persons who have been preferred to the complainant. In each case the employer has been willing to produce for inspection a certain amount of material. But in each case it objects to the disclosure of matters revealed in confidence on the ground, broadly, that this would involve a breach of the confidence under which the material came into existence, and would undermine the whole system and structure of promotion and employer management.

The appeals call for a decision on principle applicable generally to complaints of discrimination, but in the end these particular cases have to be decided, so I think it advisable to say something more about them before attempting generalisations. Mrs. Nassé, as other employees of the S.R.C., had made on her an annual confidential report. This form of report, commonly used in the public service, is made by the employee's immediate superior, by an officer senior to the reporting officer, and by the next senior officer to the latter. These reports to some extent involve an assessment of personal qualities and are confidential in the sense that those signing them know that they will not be shown to the person reported on. They are also confidential in the sense that the person reported on knows that the contents of the report will only be used or disclosed for the purpose of monitoring his performance. However, the person reported on may ask to be told of some of the information given in the report.

The reports on Mrs. Nassé, in accordance with the usual procedure, were considered by a local review board together with reports on other employees.

The local review board made notes from the reports and then made recommendations to the director of the Laboratory where she was employed as to clerical officers to be put forward for promotion. After endorsement by the director, the recommendations were forwarded to a central review board. Mrs. Nassé was not recommended for promotion: the only officer who was recommended in 1976 was a Mr. Roberts. The central review board decided to call for interview Mr. Roberts and a Miss Richardson, but not Mrs. Nassé. Ultimately Mr. Roberts and Miss Richardson were promoted.

The documents which Mrs. Nassé, by letter to the industrial tribunal, requested should be supplied to her were (a) the annual confidential reports on Mr. Roberts, Miss Richardson and herself for 1975-6 (later extended in the case of Mr. Roberts to 1974) and the minutes of the local review board. The S.R.C. furnished her with copies of the report on herself but refused her other requests. After a hearing on 23rd November 1977 the industrial tribunal granted Mrs. Nassé's application and this decision (with a small variation) was upheld by the Employment Appeal Tribunal on 19th May 1978. On appeal by the S.R.C. to the Court of Appeal, that court allowed the appeal and refused Mrs. Nassé's application.

Mr. Vyas applied in October 1977 for a level transfer to a position in respect of which his employer had advertised two vacancies. Three other persons applied for the vacancies and they, together with Mr. Vyas, were interviewed. Mr. Vyas was unsuccessful. After he had made his complaint to an industrial tribunal an application was made (inter alia) for an order requiring the employer to disclose details of the employment record of the other persons interviewed, their service records, personal history forms, personal assessment records and details of commendations, if any, together with their application forms for the post advertised. He also asked for disclosure of the completed interview report forms returned by each member of the interview panel in relation to each person interviewed. Certain other information requested was supplied to the complainant, but the employer objected to disclosing the matters referred to. As to the latter the chairman of the industrial tribunal refused the application, but it was allowed on appeal by the Employment Appeal Tribunal, with an indication that in doing so the tribunal felt constrained to follow the decision in Mrs. Nassé's case. On appeal to the Court of Appeal, an affidavit was admitted at a late stage from the employer's staff director stating that disclosure of such documents would lead to an inhibition of freedom and candour in reporting and an inhibition on the part of employees when applying for jobs or promotion. It was further stated that such disclosure would constitute a breach of faith which would be likely to lead to industrial unrest and diminution of the effectiveness of selection procedures. The Court of Appeal allowed the employer's appeal.

On the appeals coming before your Lordships very extensive arguments were heard ranging widely over many areas of substantive and procedural law, with references to American cases under the Civil Rights Act 1964 and to the European Convention of Human Rights, Art. 6. Since I regard our task in this House to be at most to establish rules which can be applied by industrial tribunals (and analogously by county courts in discrimination cases), I shall summarise the statutory background and then, state the conclusions to which, I have come before developing certain supporting arguments.

There are three statutes dealing with discrimination: in these appeals we are concerned with all of them. I shall refer only to such provisions as are essentially relevant. The Employment Protection Act 1975 sections 53 ff. deals with action taken against an employee for the purpose of penalising him for being a member of an independent trade union, or of preventing or deterring him from taking part in the activities of an independent trade union. Complaints go to an industrial tribunal where the employer has the burden of showing that the purpose for which the action was taken, was not such as has been mentioned (see section 55(1) (b)). Complaints of discrimination in employment under the Sex Discrimination Act 1975 or the Race, Relations Act 1976 also go to an industrial tribunal, but in these cases the burden of proof ,is on the employee.

Discrimination in others matters (e.g.-as to education or housing); go to a county court and are to be dealt with "as any other claim in tort" (see sections 66(1) and 57(1) of these Acts respectively).

In-cases under the Sex Discrimination Act and the Race Relations Act the necessary information and material to support or refute a claim will rarely be in the possession of the employee,-but, on the contrary, is likely to be in the possession of the employer. Discrimmation, at least in promotion cases, involves an allegation that, although the unselected complainant is as well qualified as the person selected, or indeed better qualified, he was not chosen, an allegation which almost necessarily involves a careful comparison: of qualifications and an enquiry into the selection process. The employer's likely to have information on these matters. So, in order to ensure its productions, each of the Acts contains a powerful inquisitorial procedure enabling the statutory Commissions set up trader each Act to obtain information.

They may conduct a "formal investigation" and in the course of it require any person to give oral information and produce documents; there is however the limitation that a person cannot be required to give information or produce documents, which he could not be compelled to give in evidence or produce in civil proceedings before the High Court. If an individual considers that he may have been discriminated against, the relevant Commission may assist him (by advice or "legal aid") and may help him to question the employer by means of a ;questionnaire. If the employer refuses to answer, or if his answer appears evasive or equivocal, inferences adverse to him may be drawn. Furthermore, industrial tribunals have powers - of their own motion - to ask for particulars of the grounds on which a person relies and of any facts or contentions relevant thereto. These provisions may appear Draconian - they did so to some extent to Lord Denning M.R. - but for my part I do not find it necessary to characterise them. The powers have been conferred by Parliament upon statutory bodies as part of the machinery for eliminating discrimination in situations where the parties are of unequal strength: no instance was given to us of an oppressive use of them and we should presume that they will be reasonably used for the purpose for which they were given. The relevant point to be made is that, by reason of these powers, employees and the tribunals have the means, before any question of discovery arises, to obtain a great deal of information which may assist the employees' case, and indeed by conferring them Parliament has shown that its policy is that they should have every chance to lay before the tribunal or the court all material that may be relevant to a discrimination claim.

That brings me to the question of discovery (in which I include inspection) as to which the situation, as I see it, is formally simple. By a number of cross references between Regulations (S.I. 1386 of 1974), the County Court Rules and the Rules of the Supreme Court the position is reached that the tribunal, or the county court, has a general discretion to order discovery, coupled with the qualification that "discovery shall not be ordered if and so far as the court "is of the opinion that it is not necessary either for disposing fairly of the "proceedings or for saving costs" (R.C.C. 0.14 r. 2(2)). These provisions, applied as they have been since their introduction, are sufficient to provide a solution for the issues in these appeals. These are, broadly, two: First, is there in relation to confidential documents, or any relevant class of confidential documents, any immunity from disclosure. Second, if not, how should the tribunal exercise its discretion as to discovery in relation to confidential documents in this field? (Here and elsewhere I use the word "tribunal" so as to include, where appropriate, a county court.)

On these points my conclusions are as follows: -

1. There is no principle of public interest immunity, as that expression was developed from Conway v. Rimmer [1968] AC 910 protecting such confidential documents as these with which these appeals are concerned.

That such an immunity exists, or ought to be declared by this House to exist, was the main contention of Leyland. It was not argued for by the S.R.C.; indeed that body argued against it.

2. There is no principle in English law by which documents are protected from discovery by reason of confidentiality alone. But there is no reason why, in the exercise of its discretion to order discovery, the tribunal should not have regard to the fact that documents are confidential, and that to order disclosure would involve a breach of confidence. In the employment field, the tribunal may have regard to the sensitivity of particular types of confidential information, to the extent to which the interests of third parties (including their employees on which confidential reports have been made, as well as persons reporting) may be affected by disclosure, to the interest which both employees and employers may have in preserving the confidentiality of personal reports, and to any wider interest which may be seen to exist in preserving the confidentiality of systems of personal assessments.

3. As a corollary to the above, it should be added that relevance alone, though a necessary ingredient, does not provide an automatic sufficient test for ordering discovery. The tribunal always has a discretion. That relevance alone is enough was, in my belief, the position ultimately taken by counsel for Mrs. Nassé thus entitling the complainant to discovery subject only to protective measures (sealing up, etc.). This I am unable to accept.

4. The ultimate test in discrimination (as in other) proceedings is whether discovery is necessary for disposing fairly of the proceedings. If it is, then discovery must be ordered notwithstanding confidentiality. But where the court is impressed with the need to preserve confidentiality in a particular case, it will consider carefully whether the necessary information has been or can be obtained by other means, not involving a breach of confidence.

5. In order to reach a conclusion whether discovery is necessary notwithstanding confidentiality the tribunal should inspect the documents. It will naturally consider whether justice can be done by special measures such as "covering up" substituting anonymous references for specific names, or, in rare cases, hearing in camera.

6. The procedure by which this process is to be carried out is one for tribunals to work out in a manner which will avoid delay and unnecessary applications. I shall not say more on this aspect of the matter than that the decisions of the Employment Appeal Tribunal in Stone v. Charrington & Co. Ltd. (15th February 1977) per Phillips J., Oxford v. D.H.S.S. [1977] I.C.R. 884, 887, per Phillips J. and British Railways Board v. Natarajan [1979] I.C.R. 326 per Arnold J. well indicate the lines of a satisfactory procedure, which must of course be flexible.

7. The above conclusions are essentially in agreement with those of the Court of Appeal. I venture to think however that the formula suggested namely:

"The industrial tribunals should not order or permit the disclosure of reports or references that have been given and received in confidence except in the very rare cases where, after inspection of a particular document, the chairman decides that it is essential in the interests of justice that the confidence should be overridden: and then, only subject to such conditions as to the divulging of it as he shall think fit to impose - both for the protection of the maker of the document and the subject of it."

may be rather too rigid. For myself I prefer to rest such rule as can be stated upon the discretion of the court.

To these conclusions I will now add some supporting arguments. I make these briefly since a large part of the ground is familiar, and to deal fully with all the contentions we have heard would require treatment disproportionate to the case. In the end the issue between the parties, apart from the claim to public interest immunity, is a narrow one.

2. No authority is needed for the negative proposition that confidentiality alone no ground for protection - see however Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners [1974] A.C. 405.

English law as to discovery is extremely far reaching: parties can be compelled to produce their private diaries; confidences, except between lawyer and client, may have to be broken however intimate they may be. But there are many examples of cases where the courts have recognised that confidences, particularly those of third persons, ought, if possible, in the interests of justice; to be respected. See, for recent examples, A-G. v. Mulholland [1963] 2 Q.B. 47 & A-G.v. Clough [1963] 1 Q.B. 773 and compare A-G. v. North Metropolitan Tramways Co. [1892] 3 Ch.70. This principle was accepted by this House in D. v. N.S.P.C.C. [1978] AC 171. Employment cases, and indeed all cases involving selection, involve a wide dimension of confidentiality, affecting other candidates or applicants, who may be numerous, and a number of reporting officers and selection bodies. No court attempting to administer these acts can fail to give weight to this, though it is not, as above stated, the only element. It is sometimes said that in taking this element into account, the court has to perform a balancing process. The metaphor is one well worn in the law, but I doubt if it is more than a rough metaphor. Balancing can only take place between commensurables. But here the process is to consider fairly the strength and value of the interest in preserving confidentiality and the damage which may be caused by breaking it; then to consider whether the objective - to dispose fairly of the case - can be achieved without doing so, and only in a last resort to order discovery, subject if need be to protective measures. This is a more complex process than merely using the scales: it is an exercise in judicial judgment.

3. It was justly pointed out by Mr. Lester Q.C., for Mr. Vyas, also representing the two Commissions, that Parliament in enacting the two Discrimination Acts, and also in the field of employment protection, undoubtedly had in mind that considerations of confidentiality might arise, and indeed legislated as to this matter. Thus, in the Industrial Relations Act 1971, while employers were obliged to disclose certain information to employees, or to trade union representatives (sections 56, 57) there was a specific provision relieving employers of their obligation as regards "information which has been communicated to the employer in confidence, or which the employer has otherwise obtained in consequence of the confidence reposed in him by another person" (section 158(1)). That same Act contained provisions regarding discovery in industrial tribunals similar to those which apply in the present cases (Schedule 6, paragraph 2(d)) without any reference to confidential matters. On the repeal of the Industrial Relations Act 1971 these provisions were carried forward into the Trade Union and Labour Relations Act 1974 which extended the powers of industrial tribunals (Schedule I, Part III, paragraph (6)) with a similar reference to confidential matters as had* been made in section 158 above (Schedule I, Part III, paragraph 21(5)) - power being given to sit in private to protect confidentiality. So the policy of this Act was to allow discovery and inspection in industrial tribunals on the same basis as would be allowed in county courts with specified safeguards for confidentiality. The Employment Protection Act 1975 contained similar provisions regarding disclosure and confidential information to those contained in the (repealed) Industrial Relations Act 1971, sections 56 and 158, but gave no immunity as regards such information in proceedings in industrial tribunals under Part II of that Act. These repeated enactments show, it was said, a deliberate abstention by Parliament from introducing any immunity or confidential information into proceedings before industrial tribunals, although Parliament had to hand the necessary language for so doing.

My Lords, I recognise the force of all this but I do not think that it leads to the conclusion which it is sought to draw from it. The fact that Parliament has conferred a specific degree of immunity upon confidential information required to be disclosed in particular circumstances is not inconsistent with a legislative intention that industrial tribunals should have the same power, in their discretion, to refuse or limit discovery where confidential information is concerned. This power is not one to confer immunity: it is simply the ordinary discretionary power which is enjoyed by the High Court and by county courts. By equating the powers of tribunals to those of the courts, Parliament has, in my opinion, indicated in a clear enough way that those limitations upon the granting of discovery which the courts have long accepted should apply to tribunals, and the granting of the much wider immunity in other cases does not, in my understanding, negate this.

4. The European Convention on Human Rights. The point here is a very short one. Art. 6(1) of the Convention guarantees the right to a fair hearing: the appellant (Vyas) relies on this as requiring total disclosure of all information relevant to the case, confidential or not. But this is a fallacy, because the whole aim and object of those carefully worked out provisions of English law which regulate the right to discovery and inspection of documents is precisely to achieve a fair hearing. That is the standard of our law and it is unnecessary to have resort to the Convention to establish it.

It remains to dispose of the actual appeals. In Mrs. Nassé's case, discovery was sought of a whole range of documents as specified above, claimed by the employer to be confidential. The chairman of the industrial tribunal ordered accordingly without inspecting the documents. The Court of Appeal held that this was wrong and that discovery should only be ordered if, after inspection, the tribunal considered discovery to be necessary in order to dispose fairly of the proceeding. In my opinion, the Court of Appeal was right, and the appeal must be dismissed. This does not prevent Mrs. Nassé, if she goes on with her case, from requesting the tribunal to look at the requested documents and ordering, subject if necessary to safeguards, discovery and inspection of such of them as are necessary for fair disposal of the case. In Mr. Vyas' case the situation is similar. The Employment Appeal Tribunal ordered that he should be allowed to inspect all the documents to which I have referred (as listed in a letter dated 15th February 1978) regardless of confidentiality. The Court of u Appeal held that this was wrong and I agree with them. The order of the Employment Appeal Tribunal was correctly set aside, and the appeal must be dismissed. However some of the documents may well be necessary for disposing fairly of the case. If it goes on, the industrial tribunal should consider, at the time and in the manner which it considers most suitable, which, if any, of the requested documents should be disclosed and produced in order to enable the proceeding to be fairly disposed of.

I would dismiss the appeals and order each appellant to pay the respective respondents costs in this House.

Lord Salmon

My Lords;

My nobler and learned friend, Lord Wilberforce, has lucidly stated all the material ,facts, the relevant provisions of the three statutes and the rules and orders with which these two appeals are concerned. I will hot repeat but gratefully adopt them.

The question which these appeals raises is of great importance – " What rights has an employee, complaining of unlawful discrimination, to obtain an order against his employer for the production of documents which contain confidential information" "Complainants" include all who complain of and seek redress for unlawful discrimination on account of their sex, race or trade union activities. Such discrimination is: treated as a tort in England and as a breach of statutory duty in Scotland.

It is plain from the Industrial Tribunals (Labour Relations) Regulations 1974 that Parliament did not intend to deprive the person against whom such discrimination is alleged to have been committed, of any of the facilities enjoyed by the ordinary plaintiff suing for damages for tort. One of the most useful of these facilities is the right in certain circumstances to obtain an order for discovery and inspection of documents. This right is of particular importance in cases of alleged discrimination such as the present for it is the employer alone who will ordinarily be in possession of the documents likely to throw light upon the question as to whether: or not the employer has unlawfully discriminated against the complainant. I do not think that the importance to the complainant of his right to claim an order for inspection of the relevant documents is diminished by the statutory machinery which exists to allow the complainant and indeed the industrial tribunal to question the employer and at an early stage to obtain answers relating to whether the employer has unlawfully discriminated against his employee. It is, no doubt, possible that the answers, if reliable, might establish or negative the alleged unlawful discrimination and therefore make inspection of any documents unnecessary; On the other hand, there is the danger that the answers may be exiguous or unreliable and misleading. The only way of testing the accuracy of the employer's answers may often be by comparing them with the reports and records in their possession. The statutory machinery for obtaining early information from the employers was not, in my view, intended to be a substitute for, but an addition to the complainant's rights to discovery and inspection of documents.

It is plain from the facts of the present case that there is, particularly in large enterprises, an elaborate system for making and filing written reports and records in relation to each employee, and that these reports are of special importance when it comes to decide which of the employees applying for promotion or transfer shall be interviewed by the panel which selects the applicants for promotion or transfer. Suppose that one of the candidates who happened to be black had excellent written records and reports but failed to obtain the promotion or transfer for which he had applied, whilst two other candidates who happened to be white did obtain promotion or transfer although their records and reports were well below those of the black man; this could well be regarded as establishing, at any rate, a strong prima facie case of race discrimination. But without discovery and inspection of the relevant documents, the truth could not have been found nor justice done.

The argument advanced with great skill and relied upon almost exclusively by British Leyland was that the following documents which Mr. Vyas required to be produced enjoyed public interest immunity:

"3. Details of the employment record of the persons mentioned in (1) and (2) above; their service records whilst in the employment of the respondents, i.e. length of service, positions held, promotions, job classification according to grades, personal history forms, personal assessment records and details of commendations (if any) etc. together with their application forms for the post advertised, and applied for by the applicant".

"6. The completed interview report forms returned by each and every member of the interview panel in relation to every person, including the applicant, interviewed for the afore-mentioned post in the services division of the respondents".

I cannot agree that the production of such documents could have the dire effect which has been suggested, and of which there is certainly no real evidence.

I cannot accept the proposition that those whose duty it was to write reports about a candidate and his record, suitability for promotion etc. would lack in candour because the reports, or some of them, might possibly sometimes see the light of day. This proposition bears a striking resemblance to that which was accepted as sound for upwards of twenty years after the obiter dicta pronounced by Viscount Simon L.C. in Duncan v. Cammell, Laird & Co. Ltd. [1942] AC 624. This proposition was however held to be unsound in In re Grosvenor Hotel (No. 2) [1965] 1 Ch. (C.A.) 1210, and generally accepted as unsound during the three years following that decision. The obiter dicta in Duncan v. Cammell, Laird & Co. Ltd. was then temporarily revivified by a majority decision in Conway v. Rimmer [1967] 1 W.L.R. (C.A.) 1031 but was finally put to rest when that majority decision was reversed in your Lordships' House, see [1968] AC 910.

No more than I accept the proposition relating to candour, do I accept the proposition that employees anxious for promotion or transfer would be inhibited from making the necessary applications if they knew that their application forms and the written decisions relating to them might also sometimes be allowed to see the light of day.

I do not consider that an order to produce for the employees' inspection such documents as those to which I have referred could be contrary to public interest; nor do any such documents bear any resemblance to the kind of documents which are normally accepted as immune from production in the public interest. I therefore consider that the main argument relied on by British Leyland (but rejected by the Science Research Council in the second appeal) must fail. The next question that arises is whether and to what extent the fact that the documents concerned are considered to be confidential affects the complainant's right to discovery and inspection. In most cases, whether before the High Court, the county court or an industrial tribunal, there has been discovery of documents with no claim to privilege or immunity from production; and the documents are normally produced for inspection as a matter of course. This however does not always apply to cases in which the documents which one of the parties wishes to inspect have come into the hands of the other party in confidence. It has long been established, however, that no documents which have been acquired in confidence can for that reason be privileged from production or inspection. This point was not challenged by counsel for the Science Research Council or British Leyland; and no doubt this also explains why counsel for British Leyland relied almost entirely upon public interest immunity.

Since confidential documents are not privileged from inspection and public interest immunity fails, the tribunal which for this purpose is in the same position as the High Court and the county court, may order discovery (which includes inspection) of any such documents as it thinks fit - with this proviso

"Discovery shall not be ordered if and so far as the court (tribunal) is of the opinion that it is not necessary either for disposing fairly of the proceedings or for saving costs".

If the tribunal is satisfied that it is necessary to order certain documents to be disclosed and, inspected in order fairly to dispose of the proceedings, then, in my opinion, the law requires that such an order should be made; and the fact that the documents are confidential is irrelevant.

The law has always recognised that it is of the greatest importance from the point of view of public policy that proceedings in the courts or before tribunals shall be fairly disposed of. This, no doubt, is why the law has never accorded privilege against discovery and inspection to confidential documents which are necessary for fairly disposing of the proceedings. What does "necessary" in this context mean? It, of course, includes the case where the party applying foran order for discovery and inspection of certain documents could not possibly succeed in the proceedings unless he obtained the order; but it is not confined to such cases. Suppose, for example, a man had a slim chance of success without inspection of documents but a very strong chance of success with inspection, surely the proceedings could not be regarded as being fairly disposed of, were he to be denied inspection.

I, of course, recognise that the tribunal, like the courts, has a discretion in the exercise of its power to order discovery. It would, however, in my view, be a wholly wrongful exercise of discretion, were an order for discovery and inspection to be refused because of the court's or the tribunal's natural aversion to the disclosure of confidential documents notwithstanding that the proceedings might not be fairly disposed of without them.

I cannot accept the view that the courts have recognised that there are circumstances in which the confidentiality of documents should be so respected that their production should be refused even if by doing so the proceedings might not be fairly disposed of. Reg. v. Lewes Justices [1973] A.C. 388 and D. v. N.S.P.C.C. [1978] A.C. 471 have been relied on for support of this view but they do not appear to me to have anything to do with it. In the first case, an application had been made to the Gaming Board to issue a certificate consenting to an applicant applying to the licensing authority for a licence to carry on a gaming club. An anonymous letter had been received by the Gaming Board strongly suggesting that the applicant was not fit to have such a licence issued to him. The applicant applied to be shown this letter. The Gaming Board refused to disclose it. Your Lordships decided that it would have been contrary to the public interest for such a letter (the contents of which could have revealed the identity of its writer) to be disclosed. To disclose it might have discouraged others from communicating to the Board what they knew about applicants for fear of libel actions, their safety and maybe their lives. It was of the greatest public importance for the Board to obtain every scrap of information it could in respect of anyone proposing to apply for a licence to carry on a gaming club. The basis of your Lordships* decision had little to do with respect for confidentiality, but a great deal to do with the danger of eliminating the Board's sources of information.

D. v. N.S.P.C.C. had equally little to do with respect for confidentiality. Cruelty to children is a most serious and fairly common social evil. The Society for its prevention has done much successful work, a large proportion of which was made possible by the information received by the Society. Your Lordships held that it was in the public interest that the identity of the Society's informers should not be revealed for much the same reason as the identity of police informers is not revealed. If it were, informers would cease to inform. The result would be strongly against public interest for in the one case little children would suffer and in the other case crime would increase.

My Lords, I cannot agree that industrial tribunals should approach cases such as these relating to confidential documents with any preconceived notion that discovery should not be ordered "except in very rare cases" and only in the last resort. I think that these cases should be approached with a completely open mind. The question being "is discovery necessary for fairly disposing of "these proceedings?", if the answer to that question is in the affirmative, as I venture to think it often may be, then discovery should be ordered notwithstanding the documents' confidentiality. The irrelevant parts of the documents should, of course, be effectively covered up.

In my view, it would be impossible for a tribunal to decide whether the disclosure of confidential documents was necessary for fairly disposing of the proceedings, without examining the documents. I think that in Nassé v. Science Research Council, the Appeal Tribunal did not examine the documents and said "disclosure of documents . . . is . . . necessary in order that the Tribunal "may be in a position to do justice not only to Mrs. Nassé but to the Council..." because it overlooked the fact that the Council might not wish to make use of the documents even if they were in its favour.

My Lords, I would dismiss both appeals and remit the two cases to the tribunal so that the chairman may now examine the documents which are claimed to be confidential and decide which (if any of them) should be disclosed and inspected, and order any irrelevant parts of the disclosed documents to be covered up. I consider that especially as there has already been such a long delay, it may well be desirable that the question of discovery should be resolved as soon as possible, so that if it is resolved in favour of the complainants, inspection may take place well in advance of the hearing.

Lord Edmund-Davies

My Lords,

I respectfully agree with the reasons for dismissing these consolidated appeals advanced in the speech of my noble and learned friend, Lord Wilberforce, which I have had the advantage of reading in draft, and also with the order which he proposes. What follows should therefore be regarded as simply enlarging upon some of the topics involved which are of particular interest and importance.

The principal issue raised is as to the manner in which the discretionary powers conferred on industrial tribunals to order discovery and inspection of documents should be exercised in cases of alleged discrimination in the employment field, where the complainant seeks access to confidential assessments and other documents relating to his fellow-employees. The appeals also indirectly concern the powers conferred in county courts in cases of alleged sex or, racial discrimination outside the employment field, under Part III of both the Sex Discrimination Act 1975 and the Race Relations Act 1976. The relevant facts are related in the speeches of others of your Lordships and I shall not repeat them.

Public Interest Immunity

I deal first with the plea (advanced only on behalf of the employers of Mr. Vyas, but disclaimed and indeed criticised by the Science Research Council) that such confidential documents are protected by public interest immunity. It was rightly rejected by a majority of the Court of Appeal ([1979] Q.B. 144), Browne, LJ. saying (180 EF):

I am much impressed by the disadvantages of the disclosure of such [confidential] information . . . But I have come to the conclusion that I cannot hold that the disclosure of this information is prohibited by 'public interest privilege'. It is now established that this 'privilege' is not confined to government departments or other organs of the central government, but it has so far been confined to bodies exercising statutory duties or functions. Further, it has so far been confined to cases analogous to the 'police informer' immunity: Reg. v. Lewes Justices [1973] A.C. 388 and D. v. N.S.P.C.C. [1978] AC 171. If it extends to the present cases, it would mean that an employer who wished to rely on some such confidential report (presumably with the consent of the author) would not be able to do so: [counsel] said that Leylands would accept this, and would rather lose a case than disclose confidential information; but other employers . . might take a different view. Further, if such a 'public interest privilege' applies, the Commission [for Racial Equality] would not be entitled to require such information in their inquisitorial role: see Sex Discrimination Act 1975, section 59(3) and the Race Relations Act 1976, section 50(3). And if there was a duty not to disclose such documents in discrimination proceedings it would also apply in ordinary litigation".

To hold that public interest immunity applied here would mean that, whatever the attitude of the parties concerned, it could never be waived and would indeed have to be raised by the chairman or judge himself if not taken by the parties or by the Crown (Rogers v. Secretary of State for the Home Department, [1973] A.C. 388)., The manifest intention of Parliament could thereby become substantially frustrated. I therefore concur in holding that this plea of immunity should be rejected.

2. Protection of Confidentiality

Learned counsel for the appellants went so far as to submit that the confidential nature of the documents here in question is totally irrelevant to the matter of discovery, and that the tribunal or court should therefore wholly ignore the protests of third parties against the disclosure of information furnished by them in the belief that neither it nor its sources would ever be revealed. Reliance for that submission was placed on cases ranging from Hopkinson v. Burghley in 1867 (Law Rep. 2 Ch. 447) to McIvor in ([1978] 1 W.L.R. 757); and the Industrial Relations Act 1971, section 158 (1), and the Employment Protection Act 1975, section 18, were adverted to as illustrating Parliament's ability to provide express safeguards for the preservation of confidences when it thinks this is desirable. But for myself I am wholly unable to spell out from the absence of corresponding statutory provisions applicable to the present cases the conclusion that confidentiality is an irrelevance. It is true that it cannot of itself ensure protection from disclosure (Crompton (Alfred) Amusement Machines Ltd. v. Customs & Excise Commissioners, [1974] A.C. 405; D. v. N.S.P.C.C. [1978] AC 171), but confidentiality may nevertheless properly play a potent part in the way in which a tribunal or court exercises its discretion in the matter of discovery.

There was ample evidence supporting the view expressed by the Court of Appeal that the disclosure to inspection of confidential reports could well " create upsets and unrest which would have a general deleterious effect. And a court, mindful of that risk, may understandably - and properly - think it right to scrutinise with particular care a request for their inspection. That is not to say, however, that the fear of possible unrest should deter the court from ordering discovery where the demands of justice clearly require it, but it serves to counsel caution in such cases.

Rules governing discovery

As the heading to Mrs. Nassé's first letter showed, her original complaint related solely to "Discrimination for Trade Union Activities", and this was adhered to throughout until, in her originating application three months later, she added for the first time, "Discrimination against me because I am a married "person". I mention this because there is an important difference between the Employment Protection Act 1975 and the Sex Discrimination Act 1975 in that if an employee complains to an industrial tribunal of penalisation because of participation in trade union activities, section 55(1) of the former Act (now section 25 of the Employment Protection (Consolidation) Act 1978) imposes upon the employer the burden of establishing the contrary. But no corresponding provision is contained in the latter Act or in the Race Relations Act 1976 upon which Mr. Vyas relies.

Mrs. Nassé's employers expressly conceded the relevance to her complaint of the withheld documents. That concession, in combination with the aforementioned statutory provision in her favour, formed the basis of Mr. Kidwell's submission that she was entitled as of right to the interlocutory relief sought. For, so he submitted, as no-one suggested that her case was frivolous or vexatious, the interest of others (not being parties to the litigation) in having their confidences preserved had to be ignored. And, he added, the single fact that she had never even been interviewed for the appointment she sought showed that she had been eliminated solely on the basis of her documents and those of the other aspirants, and this established the great importance to her of obtaining discovery. Indeed she had testified to the industrial tribunal that they were "all the evidence I can produce" and had added that she had "no case without them".

My Lords, I have referred to the facts of Mrs. Nassé's case in a little detail because they are, as I think, helpful in considering the proper approach in this matter of discovery. Learned counsel for both appellants stoutly submitted that in such circumstances a general order for production and inspection of all relevant documents should forthwith be made. As to that, it has to be said in the first place that acceptance of the submission would involve departure from the settled practice of industrial tribunals, regarding which Phillips J. in Stone v. Charrington (unreported, 15th February 1977) made the following wise observations, based upon his great experience of the practical operation of the relevant legislation:

"Industrial tribunals were set up with the purpose of operating cheaply, quickly and informally, and as far as possible therefore it is desirable that the formalities of the regular courts should be avoided. To introduce a formal system of discovery and inspection, interlocutories, and so on, might in the abstract produce more perfect justice, but it would be at such great cost in time, money and manpower that the whole machine would grind to a halt... Occasionally it becomes necessary for adjournments to be granted so that unforeseen problems can be considered in the light of additional documents and enquiries, or further particulars. No doubt that is sometimes inconvenient and is not an ideal solution, but it is the only alternative to an elaborate structure of interlocutory proceedings ... We should certainly not discourage... making orders for particular discovery, and so on, in cases where to do so is really necessary to ensure the fair trial of the application. But it would be absurd to do so as a matter of routine in every case."

The second thing to be said about the appellants' submission that they are entitled as of right to general discovery is that it is unacceptable whenever (as here) disclosure is resisted; and this even though a party is in the ordinary way permitted to inspect relevant documents listed by his opponent as being in his possession, custody or power. Indeed, the rules governing discovery in cases arising under these three Statutes are no different in nature from those governing discovery in the general run of cases; see, for example, A.G. v. North Metropolitan Tramways Co. [1892] 3 Ch 70 and [1895] 72 L.T. 340. Industrial tribunals are regulated by Rule 4(l)(b) of the Industrial Tribunal Rules 1974, entitling them to "grant... such discovery or inspection of documents as might "be granted by a county court", while the latter court - whether dealing with Sex Discrimination Act or Racial Discrimination Act cases or indeed any other kind of litigation - "shall not make an order for inspection of... documents "if and so far as the court is of opinion that it is not necessary either for disposing fairly of the proceedings or for saving costs" (County Court Rules 1936, O, 14, r.3(5)). In a similar manner, complaints of discrimination outside the employment field are required to be dealt with in England "in like manner as any other claim in tort", and in Scotland as in "any other claim... in reparation for breach of statutory duty" (Sex Discrimination Act 1975, section 66(1); Race Relations Act 1976, section 57(1)).

So an industrial tribunal or county court needs to be satisfied not only of the relevance of documents, but also that inspection of them - and each of them - is "necessary" for achieving one or both of the purposes indicated. Admissions already made by the party against whom inspection is sought may have rendered discovery unnecessary, or (as Mr. Lester Q.C. conceded) the probative value of documents may clearly be so slight as to render unjustifiable an order for their inspection. Or the very nature of the documents, their dates, or other features may indicate that they are unlikely to prove "necessary". Again, a request for inspection of a great mass of documents, without any attempt at selection, could well be regarded as oppressive. Or resort to the various procedures under the Statutes (described as "inquisitorial" and "litigious" by Lord Denning M. R. at [1979] Q.B. 170, 171 AD and 172 F) may have yielded as much information as any documents would be likely to do; and, although Mr. Lester disputed the relevance of such procedures to the matter in hand, I see no reason why a tribunal, being naturally reluctant to order discovery of confidential documents if this could properly be avoided, should not first resort to the implementation of such procedures. But, on the other hand, the aforementioned statutory provision in favour of employees created by the Employment Protection Act 1975 section 55(1) seems irrelevant for, although it would operate to preclude successful submission by the employer of "no case to answer", inspection of his documents might nevertheless be essential for the effective cross-examination of his witnesses and to counter submissions presented on his behalf.

But what if, having heeded all proper considerations, the tribunal or county court judge remains in doubt about the necessity, and therefore the propriety, of ordering discovery? Resort may then be had to their statutory power to inspect the withheld documents for themselves, Lord Denning putting the matter in this way (ibid., at 173F): _

"The industrial tribunals should not order or permit the disclosure of reports or references that have been given and received in confidence except in the very rare cases where, after inspection of a particular document, the chairman decides that it is essential in the interests of justice that the confidence should be overridden; and then only subject to such conditions as to the divulging of it as he shall think fit to impose both for the protection of the maker of the document and the subject of it. He might, for instance, limit the sight of it to counsel and solicitors on their undertaking that it should go no further" (Italics added).

With respect, however, I would omit the reference to "very rare cases", for this* could convey to some the mistaken notion that a tribunal or judge should approach the problem from the viewpoint that he is being asked to sanction something which, on the face of it, is unwarrantable and that he should seek all means of avoiding it. But, as Lawton LJ. said, the matter is largely one of emphasis, and I am with him when he added (ibid. 177G):

"In my judgment, when balancing the interest of the applicant against the desirability of preserving confidentiality, the judge or chairman must remember that Parliament has created new causes of action which it has enacted are to be tried like actions in tort. If among the defendant's documents there are some (albeit confidential ones) which will help the applicant to prove his case, he is entitled to see them - the statutory Rules of Procedure and County Court Rules say so".

Conclusion

I studiously refrain from further comment on the facts of these two cases lest I appear to advert, however unintentionally, to their prospects of success, a consideration which has no relevance where no-one suggests the claims are frivolous or vexatious. But what is directly in point is that in the case of Mrs. Nassé the industrial tribunal (upheld on appeal) granted her originating application on her ipse dixit that the withheld documents were necessary for the establishment of her claim, while in the later case of Mr. Vyas the Employment Appeal Tribunal (presided over by Phillips, J.) with manifest reluctance reversed the industrial tribunal's refusal of discovery, on the ground that to depart from the recent decision in Nassé "would only cause confusion were we "at this stage to take a different line from that which has been taken previously".

While the reluctance of Phillips J. is understandable, the outcome in both cases was, in my judgment, unacceptable. For neither tribunals nor Employment Appeal Tribunals were possessed of sufficient knowledge to entitle them to decide as they did, and whether any of the documents sought were "necessary "for disposing fairly of the proceedings or for saving costs" must for them have been still a matter of mere guesswork. That being the position, the proper course was that described by Arnold J. (as he then was) in British Railways Board v. Natarajan [1979] I.C.R. 326, at 333F:

"We think that before deciding whether an examination is necessary, the judge or chairman of the tribunal... or the appellate court... must decide whether there is any prima facie prospect of relevance of the confidential material to an issue which arises in the litigation; put another way, whether it is reasonable to expect that there is any real likelihood of „ such relevance emerging from the examination. If there is not, we do not think that the exercise of examination is necessary or should take place".

Whether a tribunal or court should decide that they themselves should inspect must always depend on the particular facts and issues, though it is difficult to see how they can ever properly conclude that discovery is "necessary" without such inspection. But where a court inspection is decided upon, there can be no hard-and-fast rule as to when it should take place. As Arnold J. said further in Natarajan {ibid., at 333G):

"... it is, we think, a matter of convenience in each case whether the examination should take place at the interlocutory stage of discovery or immediately the matter arises at the trial. We can conceive that there would be many cases in which, having regard to the probable way in which the material, if found relevant, would have to be treated, that it would be essential for the decision to be made at the interlocutory stage of discovery. But there are also cases where, having regard to the way in which the material would have to be dealt with, such an early examination would not be necessary. That is a matter which we think must be decided in relation to each case in which the point is relevant".

The Court of Appeal rightly held that discovery should not have been ordered in either of these two cases without the respective industrial tribunals or the appellate courts first inspecting the withheld documents. That unfortunately not having been done, it follows that both appeals should be dismissed. The cases should be remitted to the respective industrial tribunals, so that they may consider afresh the matter of discovery in the light of the observations of your Lordships' House.

Lord Fraser of Tullybelton

My Lords,

These appeals raise questions of much practical importance about the powers of industrial tribunals and county courts to order discovery and inspection of confidential documents in proceedings by persons complaining of discrimination on the ground of sex, race, or trade union activities, contrary to the recent Acts making such discrimination unlawful. The first question is whether confidential documents relating to persons other than the complainers are covered by public interest immunity, with the result that tribunals and courts cannot order them to be disclosed. If the answer to that question is that the documents are not immune from disclosure in such proceedings, a second question arises as to the circumstances in which tribunals (or county courts) should order them to be disclosed.

In one appeal the appellant and claimant is a married woman, Mrs. Nassé; who was employed by the Science Research Council ("S.R.C.") as a clerical officer at their Appleton laboratory. In 1977 two other clerical officers, one a man and the other a woman, who was then single but has since married, were interviewed for promotion, although they were both junior to Mrs. Nassé in terms of service and in her view their claims to promotion were no better than hers. Mrs Nassé was not called for interview at that time. The appellant complainer in the other appeal is Mr. Vyas who was employed by British Leyland Cars Ltd. ("B.L.") as a senior supplies analyst. Mr. Vyas is of Asian origin. He applied for,transfer to one of the vacancies in the same grade as the job that he held at that time. He was not selected for transfer but two other men, one of whom was of a lower grade than he was, were transferred to the job for which he had applied.

In both appeals the complainers allege, and invite an industrial tribunal to infer, that the reason why they were not selected for interview,(in Mrs. Nassé's case) or for transfer (in Mr. Vyas's case) must have been unlawful discrimination by the employers. Mrs. Nassé complained that the S.R.C. had penalised her for her militant behaviour as chairman of the local sub-branch of a trade union, and had also discriminated against her because she was a married woman, and that they had thereby acted contrary to section 53 of the Employment Protection Act 1975, and section 6 of the Sex Discrimination Act 1975. Mr. Vyas' complaint was that B.L. had discriminated against him because of his racial origin, contrary to section 4(2)(b) of the Race, Relations Act 1976. The common feature of both cases which is relevant for present purposes is that the allegations involve comparison between the complainers' qualifications and those of other employees with whom they were in competition for promotion or transfer. The argument for both complainers, in its simplest form, is that all records and reports bearing upon the qualifications of the appellants themselves and of their fellow employees who were preferred to them must be relevant for the purpose of such comparison and therefore that production and inspection of all these records and reports should be ordered as of course and in advance of the hearing by the industrial tribunal. The arguments for the two appellants on the principles which should be applied did not, in the end, raise substantially different issues, and they can I think be considered together.

The employers (respondents in the appeals) presented quite separate arguments. B.L. contended that the documents which are the subject of dispute fall within a class of documents which is protected from disclosure by what was known formerly as Crown privilege, now as public interest immunity. The S.R.C. did not rely on public interest immunity, and indeed they supported the complainers in arguing against it, but they argued that the documents should not be ordered to be produced unless they were not only relevant, but necessary for the fair disposal of the case. The point at issue between the S.R.C. and the complainers came down eventually to this: there being no immunity for the documents, is the discretionary power of a tribunal to refuse to order their production excluded if they are relevant (as the appellants contended) or only if they are not merely relevant but necessary for fairly disposing of the proceedings (as the S.R.C. contended)? To put it the other way round, is the tribunal bound to order discovery and inspection of all documents that are relevant, or only of those that are necessary for fairly disposing of the proceedings?

The first question is whether the documents in question are protected by public interest immunity. The disputed documents in Mr. Vyas's appeal are the following. (1) The employment records of all the employees who were interviewed for the position for which Mr. Vyas unsuccessfully applied. These records would include records of the employee's service, positions occupied, promotions, personal history forms, personal assessment records, details of commendations and other such matters. (2) The completed interview report forms returned by each and every member of the interview panel who interviewed Mr. Vyas and the other applicants for transfer. In Mrs. Nassé's appeal the disputed documents are the annual confidential reports for the years 1975 and 1976 of the two clerical officers who were selected to appear before the interview panel when she was not, and the minutes of the local review board of meetings at which it considered the annual confidential reports for 1976 of the clerical officers employed at the Appleton laboratory. In both cases the confidential reports relating to the complainers themselves have been disclosed to them, along with certain other information for which they asked. The appeals are concerned entirely with confidential reports on fellow employees. It is apparent that the fellow employees who were the subject of the reports might well object to their being disclosed, and in Mrs. Nassé's case one of them has done so.

Both respondents rightly accepted that the reports were not entitled to immunity from disclosure merely because they were confidential. The law on this matter was stated in the case of A. Crompton Ltd. v. Customs & Excise [1974] A.C. 405, 433, by Lord Cross of Chelsea who said this:

" 'Confidentiality' is not a separate head of privilege, but it may be a very material consideration to bear in mind when privilege is claimed on the ground of public interest. What the court has to do is to weigh on - the one hand the considerations which suggest that it is in the public interest that the documents in question should be disclosed and on the other hand those which suggest that it is in the public interest that they should not be disclosed and to balance one against the other."

The considerations that were urged on behalf of B.L. as showing that it would not be in the public interest for the documents concerned in Mr. Vyas's case to be disclosed may be summarised, not I hope unfairly, as follows. (They would apply equally to Mrs. Nassé's case). First, it was said that disclosure of confidential reports such as are in question here would inhibit candour by senior employees in reporting on the suitability of subordinate employees for promotion and would also inhibit employees from applying for promotion. Secondly it was said that disclosure would be a breach of faith with the authors of the reports and with the subjects of the reports, that it would be likely to have an adverse effect on industrial relations, and might well lead to industrial unrest. These arguments were supported by an affidavit from B.L.'s staff director. In Mrs. Nassé's case, although the S.R.C. were not claiming immunity from disclosure, there were affidavits from one of the employees who was interviewed in preference to Mrs. Nassé objecting strongly to disclosure of his own confidential reports and there was a more general objection from the staff side of the S.R.C. Whitley Council to disclosure of all such reports. The public interest was said to be involved because of the importance of having a proper system for making decisions to employ and promote persons in industry in order to secure efficiency, and because of the risk that such a system could not be maintained unless complete candour could be ensured for those responsible for .operating it.

The argument based on the need for candour in reporting echoes the argument which was presented in Conway v. Rimmer [1968] AC 910 and I do not .think that it has any greater weight now than it had then. The objections by and on behalf of employees other than the complainers to having their confidential reports disclosed, readily understandable as they are, do not create a 'public interests against disclosure. They are based on a private interest which must yield, in accordance with well-established principles, to the greater public interest that is deemed to exist in ascertaining the truth in order to do justice between the parties to litigation. I am not satisfied that disclosure of the contents of confidential reports of the kind in question here, would have serious consequences upon the efficiency of British industry. In any event, the possibility of industrial unrest is not a sufficient reason for the courts to fail to give full effect to the intentions of Parliament; the courts cannot refuse to apply the law between litigants because of threats by third parties. Much reliance was placed in argument on a passage in the speech of Lord Hailsham of St. Marylebone in D. v. N.S.P.C.C. [1978] AC 171, 230 as follows:

"The categories of public interest are not closed, and must alter from time to time whether by restriction or extension as social conditions and social legislation develop"

Speaking for myself I fully, accept that proposition, but; any extension can only be made by adding new categories analogous to, those already existing, just, as in that case immunity was extended to a new category of informers to the N.S.P.C.C. by analogy with informers to the police who were already entitled to immunity. There is no analogy between the suggested public interest in the present cases and the kinds of public interest that have so far been held to justify immunity .from disclosure. Such public interest as, there is in withholding the documents from disclosure is not enough to justify the creation of a new head of immunity for a whole class of documents.

Two other considerations point against immunity. One is that in some cases immunity would make it impossible for an employee to enforce his rights under the Acts. The confidential information is almost always in the possession of the employer, and, in cases where discrimination cannot be inferred from the bare fact that someone other than the complainer has been selected for preferment, it-may be of vital importance to the complainer to have access to the reports on the-preferred individual. This is particularly true where the complaint is based on discrimination, on grounds of race or, sex, because in those cases the onus of proof is on the complainer. But even where the complaint is of discrimination for trade union activities and the onus is on the employers disclosure may be essential in order to do justice between the parties.

The second consideration is that, if public interest immunity applied, it could not be waived either by the employer alone, or by the employer with the consents of the individual who is the subject of a report and of the person who made it. That would be inconvenient, and, in my, opinion, quite unnecessarily restrictive.

For these reasons I think that the confidential reports in question here are not protected by public interest immunity. I pass now to consider the circumstances in which production ought to be ordered by a tribunal. For this purpose it is necessary to look first at the three statutes under which the appeals arise - the Sex Discrimination Act 1975, the Race Relations Act 1976, and the Employment Protection Act 1975 (the relevant part of which is now superseded by the Employment Protection (Consolidation) Act 1978). The effect of these Acts, so far as material for present purposes, was to create new statutory duties including duties imposed on employers to refrain from discriminating against employees (in which term I include applicants for employment) on the grounds of their sex, race, or trade union activities. It conferred corresponding statutory rights on employees. Claims by persons that their rights have been infringed in fields other than the employment field "may be made the subject of civil proceedings in like manner as any other claim in tort or (in Scotland) in reparation for breach of statutory duty" - Sex Discrimination Act section 66(1), Race Relations Act section 57(1), the proceedings being brought in the county court or the sheriff court. Where the complaint arises in the employment field it may be presented to an industrial tribunal - Sex Discrimination Act section 63, Race Relations Act section 54 - but the subsequent proceedings are essentially of the same nature as proceedings for discrimination in other fields. So are proceedings under section 54 of the Employment Protection Act 1975 following upon a complaint of discrimination for trade union activity. Accordingly we are concerned with proceedings for tort, or breach of statutory duty, and the ordinary rules with regard to discovery and inspection of documents in such proceedings should apply unless there are express provisions in the statutes, or other special reasons, to the contrary.

As regards express provisions, those applicable to the present appeals are found mainly in the Industrial Tribunals (Labour Relations) Regulations 1974 (S.I. 1974 No. 1386) amended in minor respects in 1978. By Rule 4 in the Schedule to the 1974 Regulations it is provided as follows:

"4(1) ... a tribunal may on the-application of a party to the proceedings ... made either by notice to the Secretary of the Tribunals or at the hearing of the originating application -

(a)...

(b) grant to the person... making the application such discovery or inspection of documents as might be granted by a county court; and

(c) ...

and may appoint the time at or within which or the place at which any act required in pursuance of this Rule is to be done."

The discovery and inspection that might be granted by a county court is regulated by rules of court, including Order 14 rule 2 of the County Court Rules which provides that the court may order discovery to be made of such documents as it thinks fit and adds:

"But discovery shall not be ordered if and so far as the court is of opinion that it is not necessary either for disposing fairly of the proceedings or for saving costs."

So far, therefore, from there being express provision that the ordinary rules for discovery are not to apply, the ordinary rules are in effect incorporated into the rules for industrial tribunals.

Are there then special reasons why the ordinary rules should be applied in a way different from that in which they are applied by the county court? Some reasons were suggested. Counsel for the appellants, who argued that all relevant information should be disclosed, relied on provisions in the statutes restricting the obligations of respondents to disclose information for certain purposes, not including proceedings in respect of the tort of discrimination. Thus in the Employment Protection Act 1975, section 17 imposes on an employer an obligation, for the purposes of collective bargaining with a trade union, to make very extensive disclosure of information to the trade union representatives. But section 18, which limits the obligation, provides that no employer shall "by virtue of section 17 above" be required to disclose inter alia "(c) Any "information which has been communicated to the employer in confidence...". The provisions of sections 17 and 18 are derived from the Industrial Relations Act 1971 (repealed and partly re-enacted by the Trade Union and Labour Relations Act 1974). Section 17 corresponds to section 56 of the 1971 Act. Section 22 of the 1971 Act created a civil right in employees not to be unfairly dismissed. Section 158 of the 1971 Act is in terms almost identical with those of section 18 of the 1975 Act. and it gave employers immunity only against the obligations to disclosure arising "by virtue of section 56" (or section 57 which required large employers to disclose information to their employees). The argument, as I understood it, was that Parliament had had in mind the need to protect employers from an obligation to disclose confidential information where the obligation arose "by virtue of" section 17 of the 1975 Act or sections 56 and 57 of the 1971 Act, but had not thought it appropriate to give protection from such obligation arising from other sources such as section 22 of the 1971 Act or the general law applicable to proceedings for tort under the 1975 Act. The only protection that Parliament considered appropriate for confidential information in proceedings before an industrial tribunal was the power given to tribunals to sit in private - see paragraph 3 of Schedule 6 to the 1971 Act (repeated in paragraph 21 of Schedule 1 to the 1974 Act) and Rule 6(l)(b) of the 1974 Rules for Industrial Tribunals, to which I have already referred. A similar point arises under the Sex Discrimination Act where section 61(1) , provides that information given to the Equal Opportunities Commission in connection with a formal investigation shall not be disclosed by the Commission except in certain events which include (a) on the orders of a court and (f) for the purpose of civil proceedings to which the Commission is a party. Section 61(3) of the Act directs the Commission in preparing its report to exclude so far as consistent with their duty, any matter which relates to the private affairs of any individual or business interests of any person "where the publication of that matter might, in the opinion of the Commission, prejudicially affect that individual or person." These provisions also show that Parliament did not think it necessary to give any special immunity against disclosure of confidential information except in the case of a formal investigation. There are exactly similar provisions in the Race Relations Act. The argument seems to me quite correct so far as it goes, but the conclusion to which it leads is that parliament, having made no special provisions for discovery in proceedings before an industrial tribunal, must be presumed to have intended that (as the l974 rules say) discovery should be "such as might be granted by a county court" neither more nor less.

Several, .arguments were adduced on behalf of the respondents with a view to showing that discovery in proceedings under these statutes should be more, restricted than in civil proceedings. One was .that adequate other means have been specially provided by the statutes for enabling complainers to obtain information and that there is therefore no need for the ordinary rules of discovery to be applied in their full rigour. A statutory power of interrogation "the questionnaire procedure") is provided by section 74 of the Sex Discrimination Act with a view to helping an aggrieved person to decide whether to institute proceedings. The respondent is bound to answer the questionnaire and , the court may draw an adverse inference if it considers his replies to be evasive or equivocal. A futher provision is that by section 75 of the Act the Equal Opportunities Commission may give assistance to a complainer both in the form of advice and of financial aid. Moreover the Equal Opportunities Commission has power; under section 57 to conduct a formal investigation for any purpose connected with carrying out its statutory duties, and to require any person to furnish under section 59 written and oral information and to produce documents. No doubt the use of these procedures, especially the questionnaire procedure, will often make extensive discovery of documents unnecessary but I do not think it will do so in all cases. Some respondents may be less responsible than the respondents in the present appeals, and it would not be right that there should be no means of verifying their replies to the questionnaire by reference to their own records. Even where frank replies to the questionnaires are made, they may be of less use in revealing the respondent's reasons than his actual records and reports. It is not so much that the reports are likely to contain positive statements of discrimination on grounds of sex or race or trade union activity, as that they may, by their silence as to any particular merits of an employee who has been promoted, lead to an inference that the only reason for his being promoted in preference to the complainer must have been that the employer had discriminated against the complainer. As regards the formal investigations, these will be directed to the "strategic" object of ascertaining the practice in a firm or a whole industry, and the Commission is directed not to disclose information received in connection with a formal investigation except under certain conditions, one of which is that publication must be in the form of a summary or other general statement which does not identify any person to whom the information relates - Sex Discrimination Act section. 61(l)(c). Such a summary would be of little use to complainers such as the present appellants who rely upon comparisons with particular persons in order to prove their complaint.

Another suggested reason why discovery in proceedings under the statutes should be more restricted than in ordinary civil proceedings was that disclosure of personal particulars about an employee (such as the successful candidate for promotion) would be more objectionable when made to a colleague beside whom he would have to continue working than it would be when made by a party to an ordinary litigation who would not usually have a continuing relationship with the opposing party. A hearing in private (which may be ordered by a tribunal for the purpose of hearing evidence of information communicated to the witness in confidence - Rule 6(l)(b) in the schedule to the 1974 rules) - provides no solution of this difficulty, because it does not avoid disclosure to the complainer, who is a fellow employee. There is force in this argument, but it should be possible, by the use of the ordinary rules of discovery, to protect an employee from any embarrassing disclosure which is not absolutely necessary for disposal of the case. Discovery of confidential reports sought by one party and objected to by the other should not be ordered when the same information can be obtained from other sources which are not confidential or which do not contain sensitive material. The court or tribunal always has a discretion to refuse to order discovery where it would operate oppressively: oppression could occur if the quantity of documents involved is large or if the information is private and could be obtained in another way without infringing privacy - see Attorney-General v. North Metropolitan Tramways Co. [1892] 3 Ch.70. Where discovery of confidential reports has to be ordered in spite of objections, every effort should be made to avoid disclosing sensitive information by covering up any parts of the documents disclosure of which is not essential. But where disclosure is necessary then in my opinion it must be made and personal privacy must be sacrificed in the interest of justice.

Where the holder of reports or other documents objects to producing them on the ground that they have been written on the basis that they will be confidential or when they contain sensitive private particulars about third parties, it will be the duty of the judge or of an appropriate officer of the court to read them and decide whether disclosure of the contents is necessary for the fair disposal of the case, or for saving expense. On a procedural level, we heard some argument about the stage at which discovery ought to be ordered in proceedings before an industrial tribunal. The respondents contended that discovery and inspection should not normally be made until the hearing. The appellants contended that it should normally be made at the interlocutory stage. Rule 4(1) (quoted above) certainly contemplates disclosure at the interlocutory stage as a possibility; but it does not seem to indicate that it is to be the normal practice. I can see arguments tending in both directions. In favour of early disclosure, there is the fact that there will be cases where discovery should satisfy a complainer that his complaint is unfounded and that proceedings ought to be dropped at once without further expenditure of time and money. Moreover if the number of documents to be discovered is large, then discovery at the hearing will almost certainly cause delay. On the other hand the procedure before an industrial tribunal is less formal than in court, the pleadings are exiguous; and hearings often take place very shortly after proceedings have been instituted. These are all factors tending to suggest that interlocutory procedure relating to discovery should be avoided if possible - see Stone v. Charrington & Co. Ltd. (unreported) in the Employment Appeal Tribunal 15th February 1977, judgment of Phillips J. The solution seems to me very much a matter for the industrial tribunals and the Employment Appeal Tribunal to work out in the light of experience; the practice probably ought to be flexible and to have regard to such matters as the nature of the case and the volume of documents involved. I agree entirely with the observations on this matter of Arnold J. in British Rail Board v. Natarajan [1979] I.C.R. 326, 333.

We were reminded during the argument that the statutes under which these appeals arise apply not only to England but also to Scotland (though not to Northern Ireland) and our attention was called to S.I. 1974 No. 1387 which regulates the procedure of tribunals in Scotland by rules which are almost exactly the same mutatis mutandis as the rules for tribunals in England. The effect is to apply the sheriff court rules as to granting commission and diligence for recovery of documents. If there had been anything in Scots law or practice on this matter which seemed to make the kind of approach that I have suggested unsuitable for application in Scotland, 1 would have reconsidered my view. But I do not think there is. It seems that confidentiality (in the sense of immunity) is rather more extensive in Scotland where it applies to a private diary - see Duke of Argyll v. Duchess of Argyll 1962 S.C (H.L.) 88 - than in England, but I do not think there is any difference in the extent of immunity relevant to the question raised here. The court in Scotland will exercise its discretion to refuse to order a third party to produce private documents containing relevant information if the information has been (or I think can be) obtained from other sources which do not involve disclosing private information - see North British Railway Co.v. Garroway (1893) 20 R. 397. The Scottish system of having excerpts taken from books and records by a Commissioner, appointed as an officer of the court, would make it easy in a case where disclosure is to be dealt with at the interlocutory stage, to avoid disclosing personal particulars about third parties, unless their disclosure is essential. Accordingly I do not see any reason why the views I have expressed in these appeals should not be conveniently applicable by a tribunal sitting in Scotland.

The result is that I agree substantially with the principle stated in the Court of Appeal by Lord Denning M.R. and approved by Browne LJ. (which has been quoted by my noble and learned friend Lord Wilberforce) except that I would omit from it the words "in the very rare eases". I doubt whether the cases, in which the chairman of an industrial tribunal will decide that disclosure of confidential reports is necessary will be very rare, and I do not think it would right to suggest that the chairman should approach consideration of any particular case with a presumption against disclosure.

I come back at last to the instant appeals. In Mrs. Nassé's case the chairman of the industrial tribunal ordered discovery of the documents in question without 'having seen them, and his decision was upheld by the)Employment Appeal Tribunal. In Mr. Vyas's case the chairman of the industrial tribunal refused to order discovery and his decision was reversed by the Employment: Appeal Tribunal. In my opinion the latter tribunal erred in both cases in ordering discovery, in spite of objections by the respondents, without the chairman, of the respective industrial tribunals having seen the documents. I agree with the Court of Appeal that both cases should go back to an industrial tribunal so that the chairman can look at the documents now. He may be able to decide immediately after reading them, whether it is essential that they should be produced in whole or in part, or he may think it better to defer a decision in one or other case, or in both cases, until the hearing. The reason why I think the chairman should look at the documents now is that the long delay which has already occurred by reason of the appeals, has prevented the complaints from being disposed of rapidly and informally, and has therefore removed one of the main objections to dealing with the discovery at the interlocutory stage.

I would dismiss both appeals and make an order in the terms proposed by my noble and learned friend Lord Wilberforce.

Lord Scarman

My Lords,

I also would dismiss both appeals. I would respectfully adopt the reasoning and the conclusion of my noble and learned friend Lord Fraser of Tullybelton, subject only to the observations which I now make upon these appeals.

The confidential nature of a document does not, by itself, confer "public interest immunity" from disclosure. The confidential nature of a document or of evidence is no ground for a refusal to disclose the document or to give the evidence, if the court requires it: Crompton (Alfred) Amusement Machines Ltd. v. Customs & Excise Commissioners [1974] A.C. 405: A.-G. v. Clough [1963] 1 Q.B. 773.

For myself, I regret the passing of the currently rejected term "Crown privilege". It at least emphasised the very restricted area of public interest immunity. As was pointed out by Mr. Lester Q.C. who presented most helpful submissions on behalf of the two statutory bodies as well as specifically for the appellant, Mr. Vyas, the immunity exists to protect from disclosure only information the secrecy of which is essential to the proper working of the government of the state. Defence, foreign relations, the inner workings of government at the highest levels where ministers and their advisers are formulating national policy, and the prosecution process in its pre-trial stage are the sensitive areas where the Crown must have the immunity if the government of the nation is to be effectually carried on. We are in the realm of public law, not private right. The very special case of D. v. N.S.P.C.C. [1978] AC 171 is not to be seen as a departure from this well established principle. Immunity from disclosure existed in that case because the House recognised the special position of the N.S.P.C.C. in the enforcement process of the provisions of the Children Act 1969: - a position which the House saw as comparable with that of a prosecuting authority in criminal proceedings. But I would not, with respect, go as far as my noble and learned friend Lord Hailsham when he said in that case, at p. 230: "The categories of public interest are not closed" ; nor can I agree with the dictum of my noble and learned friend Lord Edmund-Davies at p. 245 that, where a confidential relationship exists and disclosure would be in breach of some ethical or social value involving the public interest, the court may uphold a refusal to disclose relevant evidence, if, on balance, the public interest would be better served by excluding it.

I do not find anything in Conway v. Rimmer [1968] AC 910 or the cases therein cited which would extend public interest immunity in this way. On the contrary, the theme of Lord Reid's speech is that the immunity arises only if "disclosure would involve a danger of real prejudice to the national interest" (p. 939A). The public interest protected by the immunity is that "harm shall "not be done to the nation or the public service by disclosure": Lord Reid at p. 940D. Whatever may be true generally of the categories of public interest, the "public interest immunity", which prevents documents from being produced or evidence from being given, is restricted, and is not, in my judgment, to be extended either by demanding ministers or by the courts. And, though I agree with my noble and learned friend Lord Edmund-Davies, in believing that a court may refuse to order production of a confidential document if it takes the view that justice does not require its production, I do not see the process of decision as a balancing act. If the document is necessary for fairly disposing of the case, it must be produced, notwithstanding its confidentiality. Only if the document should be protected by public interest immunity, will there be a balancing act. And then the balance will be not between "ethical or social" values of a confidential relationship involving the public interest and the document's relevance in the litigation, but between the public interest represented by the state and its public service, i.e. the executive government, and the public interest in the administration of justice: see Lord Reid, supra. Thus my em-phasis would be different from that of my noble and learned friends. "Public "interest immunity" is, in my judgment, restricted to what must be kept secret for the protection of government at the highest levels and in the truly sensitive areas of executive responsibility.

The submission, therefore, of the respondents in the Vyas case that confidential reports upon other employees, and particularly upon those who succeeded where the applicant failed, are immune from disclosure must be rejected. The question, then, becomes one of the exercise of the court's discretion.

It does not follow that, because we are outside the field of public interest immunity, the confidential nature of documents is to be disregarded by the court in the exercise of its discretionary power to order discovery of documents.

Under the modern practice, discovery is to be ordered in the High Court, the county court, and in an industrial tribunal whenever necessary for fairly disposing of the case or saving costs: R.S.C. Order 24, rules 3, 5 and 8: C.C.R., Order 14, rule 2(2): The Industrial Tribunals (Labour Relations) Regulations 1974, paragraph 4 of the Schedule as amended.

In most, but not all, High Court litigation discovery is "automatic"; R.S.C. Order- 24, rule 2. But the right to object to production of documents as unnecessary remains available to the party who has to make the discovery. In an industrial tribunal (as also in a county court) discovery is not automatic. An order has to be made by the tribunal in the proceedings. An industrial tribunal (but not, I think, a county court) may make an order not only upon a party's application, but by its own motion. And the tribunal (or court) may make either a general order or one limited to specific documents or classes of documents.

How should the, discretion of an industrial tribunal (or a county court) be exercised in a discrimination case? Mr: Kidwell Q.G., for the appellant Mrs.

Nassé, submitted that in all such cases all relevant documents should be disclosed: in other words, that a general order should be made. And Mr. Lester supported this submission. Mr. Kidwell further submitted that the confidential nature of a: document; if relevant; was no ground for refusing to order its disclosure.' Mr. Lester, while stoutly rejecting any suggestion of public interest immunity, did not go so far. He accepted that the court has a discretion but argued for general orders in discrimination cases on the reasonable ground that the very nature of such cases requires a comparisons of the qualifications and circumstances of the disappointed applicant with those who were successful where he failed or who were in competition with him In my judgment, however, both submissions are too wide. The criterion is not relevance alone, nor are general orders for discovery appropriate in this class of litigation. The true test, as formulated by the rules of court, is whether discovery is necessary either to save costs or for the fair disposal of the case. Where speed and cheapness of legal process fare essential, as they are in county courts and industrial tribunals, general orders should ordinarily be avoided. And where, as will be frequent in this class of litigation, confidential records about other people are relevant, the court must honour the confidence to this extent: that it will not. order production unless the interest of justice requires that they be disclosed. No hard and fast rules can be laid down: but I agree with others of your Lordships*' in thinking that the Employment Appeal Tribunal gave very useful guidance on the appropriate practice in British Railways Board v. Natarajan [1979] 2 All E.R. 794; see the judgment delivered by Arnold J., particularly at p.799 (f).

To conclude, I recognise the importance of discovery in discrimination cases. There is no special law protecting confidential documents in such cases. It is for that reason that I have avoided discussing the new "statutory torts" or the investigating powers of the statutory bodies. We are concerned with the litigation of private citizens seeking redress for private wrongs. The only complicating factor is the confidential nature of relevant documents in the possession of the party from whom redress is sought. The production of some of these may be necessary for doing justice to the applicant's case. If production is necessary, they must be produced. The factor of confidence however militates against general orders for discovery and does impose upon the tribunal the duty of satisfying itself, by inspection if need be, that justice requires disclosure. Ordinarily, therefore, a tribunal will itself examine documents which are confidential before it orders their disclosure.

I agree therefore that the two appeals should be dismissed. It will be for the industrial tribunal in each case to decide whether, and to what extent, discovery should be ordered. I would expect that the tribunal would decide to inspect the documents for which confidence is claimed and determine whether any, and if so, which, should be produced. The inspection should be before the hearing takes place, so that the applicant may consider any that are produced. But the tribunal retains the power to order the production of further documents at a later stage (including at the hearing itself) if in its judgment it becomes necessary to do so in the interests of justice.