Judgments -
Tweed (Appellant) v. Parades Commission for Northern Ireland (Respondents) (Northern Ireland)
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22. The Commission issued its determination on 5 April 2004. In the opening paragraphs it referred to the background of previous incidents in Dunloy and stated in paragraph 6:
It went on to state in paragraph 15:
The determination applied a number of conditions to the parade, many of which the members of the lodge could readily accept. The parade itself was, however, very closely confined to a very short stretch of road outside the frontage of the Orange hall, which the members regarded as very little different in effect from a complete ban on parading. 23. The applicant on 2 June 2004 commenced proceedings for judicial review of the Commission's determination and on 10 June Girvan J granted leave to apply. The application was based, as I have stated, partly on a challenge to the compatibility with the Convention of section 8(6)(c) of the 1998 Act and the validity of paragraph 4.4 of the Commission's guidelines and rule 3.3 of its procedural rules, and partly on a claim that the determination constituted a disproportionate infringement of his Convention rights. The application for disclosure of documents hinges round the extent which is required when an application for judicial review turns on the proportionality of the respondent's action. 24. By a summons dated 29 September 2004 the appellant's solicitors sought specific discovery of the documents set out in the schedule to the summons, described as follows:
Item 1 was not in issue, as it was the appellant's own document, but the Commission has resisted discovery of the other five. 25. Girvan J in the High Court acceded to the appellant's application and ordered discovery of the documents specified as items 2 to 6 of the summons, subject to any issue which might be raised of public interest immunity. In a written judgment given on 19 November 2004 he concluded that in a case where proportionality is in issue disclosure of the full documents referred to in the affidavit of Sir Anthony Holland should take place. He stated at paragraph 11 of his judgment:
26. The Commission appealed with the leave of the judge against this ruling and the Court of Appeal (Kerr LCJ, Campbell LJ and Morgan J) set aside the order for disclosure, on the ground that it was premature to require it until the validity of rule 3.3 had been determined. Morgan J, giving the judgment of the court on 7 September 2005 , referred to the principle, to which I shall return later, that the intensity of review in a public law case will depend on the subject matter in hand, quoting Lord Steyn's remark "In law context is everything." He stated his conclusions in paragraphs 22 and 23:
27. Discovery of documents, now termed disclosure in the Civil Procedure Rules applying in England and Wales, is governed by Order 24 of the Rules of the Supreme Court (Northern Ireland) 1980, the analogue of RSC Order 24, which applied before the CPR came into being. The same principles continue to apply in both jurisdictions and for convenience I shall refer to the procedure as disclosure, notwithstanding the fact that it continues to bear the appellation of discovery in the RSC in Northern Ireland. 28. Applications for judicial review in Northern Ireland are not subject to the requirement contained in RSC (NI) Order 24, rule 2(1) that the parties exchange lists of documents, which applies only to actions in which pleadings are served. They are governed instead by the provisions of rule 3(1), whereby the court may order any party to make disclosure by a list of documents, and rule 7(1), empowering the court to require a party to make disclosure by affidavit in relation to any specified document or class of documents. These rules are in turn subject to rule 9, which provides that on applications for orders under rule 3 or 7 the court shall refuse to make an order for disclosure "if and so far as it is of the opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs." Until the Civil Procedure Rules came into force in England and Wales identical provisions applied under RSC Orders 24 and 53. Under CPR Practice Direction CPD 54.12, however, it is specifically provided that disclosure is not required unless the court orders otherwise. 29. The courts in both jurisdictions developed over a series of decisions an approach to disclosure in judicial review which is more narrowly confined than in actions commenced by writ. The basis of this approach is that disclosure should be limited to documents relevant to the issues emerging from the affidavits: see R v Inland Revenue Commissioners, Ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 654, per Lord Scarman, and cf Lewis, Judicial Remedies in Public Law, 3rd ed (2004), para 9.086 and a valuable article by Oliver Sanders, Disclosure of Documents in Claims for Judicial Review [2006] JR 194. In building upon this foundation the courts developed a restrictive rule, whereby they held that unless there is some prima facie case for suggesting that the evidence relied upon by the deciding authority is in some respects incorrect or inadequate it is improper to allow disclosure of documents, the only purpose of which would be to act as a challenge to the accuracy of the affidavit evidence: see the line of authority represented in England by R v Secretary of State for the Environment, Ex p Islington London Borough Council and the London Lesbian and Gay Centre [1997] JR 121 and in Northern Ireland by Re McGuigan's Application [1994] NI 143 and Re Rooney's Application [1995] NI 398. 30. The reasoning of the arguments underpinning the principles laid down by the courts has not escaped criticism and some judicial unease has been expressed on occasion about their application and effect. The "terminus" argument (that in judicial review the court is not required to consider the route by which the impugned decision is reached, but only the terminus), which emerged first in R v Secretary of State for the Home Department, Ex p Harrison [1997] JR 113 although adopted in a number of subsequent cases, has not been universally regarded as valid. A note of caution about accepting it without qualification appears in the judgment of Dillon LJ in R v Secretary of State for the Environment, Ex p Islington London Borough Council. When the Law Commission issued its report Administrative Law: Judicial Review and Statutory Appeals (1994, Law Com No 226, HC 669) it recorded (para 7.8) that two thirds of those who responded to the consultation paper favoured the introduction of a more liberal regime of discovery. The Law Commission expressed the opinion in para 7.12 that the requirements of the accepted rule were unduly restrictive and undermined the basic test of relevance and necessity laid down in O'Reilly v Mackman [1983] 2 AC 237. 31. The reasons which have hitherto been regarded as providing grounds for maintaining these principles are (a) the obligation resting on a public authority to make candid disclosure to the court of its decision making process, laying before it the relevant facts and the reasoning behind the decision challenged: see, eg, Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment of Belize (No 2) [2003] UKPC 6, para 86, per Lord Walker of Gestingthorpe; R v Secretary of State for the Home Department, Ex p Fayed [1998] 1 WLR 763 at 775, per Lord Woolf MR; (b) the undesirability of allowing "fishing expeditions", where an applicant for judicial review may not have a positive case to make against an administrative decision and wishes to obtain disclosure of documents in the hope of turning up something out of which to fashion a possible challenge: cf R v Secretary of State for Health, Ex p Hackney London Borough Council (unreported) 29 July 1994; Court of Appeal (Civil Division) Transcript No 1037 of 1994, per Sir Thomas Bingham MR. 32. Mr Hanna QC for the appellant invited your Lordships to reconsider these principles limiting the extent of disclosure in judicial review applications, as they have not been explored in an appeal before the House. He placed this argument before the House, without developing it very far, as he concentrated on the question of the effect of the proportionality issue. I do consider, however, that it would now be desirable to substitute for the rules hitherto applied a more flexible and less prescriptive principle, which judges the need for disclosure in accordance with the requirements of the particular case, taking into account the facts and circumstances. It will not arise in most applications for judicial review, for they generally raise legal issues which do not call for disclosure of documents. For this reason the courts are correct in not ordering disclosure in the same routine manner as it is given in actions commenced by writ. Even in cases involving issues of proportionality disclosure should be carefully limited to the issues which require it in the interests of justice. This object will be assisted if parties seeking disclosure continue to follow the practice where possible of specifying the particular documents or classes of documents they require, as was done in the case before the House, rather than asking for an order for general disclosure. 33. In support of his claim for disclosure of the documents the appellant also called in aid the provisions of RSC (NI) Order, rule 11:
In Dubai Bank Ltd v Galadari (No 2) [1990] 1 WLR 731, 737, Slade LJ, giving the judgment of the court, said that they were disposed to share Morritt J's view that the phrase "whose affidavits" extends to any affidavit sworn by a deponent who is not a party, but which is procured by and filed or used on behalf of a party. That view was expressed in unqualified form in The Supreme Court Practice 1997, para 24/10/1, and it seems to me clearly correct to adopt such an interpretation to make the rule sensible and workable. Moreover, an entity such as the Parades Commission can only swear an affidavit by a person duly authorised to make it on his behalf. I am therefore satisfied that the affidavit sworn by Sir Anthony Holland on behalf of the Commission comes within rule 11(1). (A similar difficulty of interpretation would not arise under CPR 31.14(1), which entitles a party to inspect a document mentioned in, inter alia, "an affidavit"). A party whose affidavits contain a reference to documents should therefore exhibit them in the absence of a sufficient reason (which may include the length or volume of the documents, confidentiality or public interest immunity). If he raises objection to production of any document, the judge in a Northern Ireland case can decide on the hearing of a summons under rule 12 whether to order production, bearing in mind the provisions of rule 15(1) that no such order is to be made unless the court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs. In England and Wales the court may order specific disclosure or inspection under CPR Rule 31.12. In determining the extent of such disclosure or inspection the court will take into account all the circumstances of the case and in particular the overriding objective in Part 1 and the concept of proportionality: Civil Procedure 2006, vol 1, para 31.12.2. 34. The essence of the appellant's case, and the ground on which Girvan J found in his favour, is in the effect of the Convention and the principle of proportionality. The appellant has claimed that the restrictions infringe his rights under articles 9, 10 and 11:
It is not necessary in this appeal to pronounce upon the question of which of these articles may be engaged or whether the objects for which the Commission imposed the restriction fell within the grounds on which the rights may be qualified. I am content to assume for the purposes of this disclosure application that each of them is engaged and that the qualifications in articles 9(2), 10(2) and 11(2) will apply. The significant point is that under each article the acts of the Commission in imposing restrictions must be proportionate. 35. This concept was described by Lord Steyn in a passage at paragraphs 27 and 28 of his opinion in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, which has been much quoted since but bears repetition:
36. Along with the concept of proportionality goes that of a margin of discretion, frequently referred to as deference or, perhaps more aptly, latitude. This has been conveniently encapsulated in a passage in Lester & Pannick, Human Rights Law and Practice, (1999) para 3.21, quoted with approval by Lord Steyn in Brown v Stott [2003] 1 AC 681 at 710-11 (the same passage appears with slight modification in Lester & Pannick's 2nd edition (2004) at para 3.20):
That this also applies to other public bodies is clear from the expression of the principle in Fordham, Judicial Review Handbook, (3rd ed, 2001), para 58.2, cited with approval by Lord Walker of Gestingthorpe in R (ProLife Alliance) v British Broadcasting Corporation [2003] UKHL 23, [2004] 1 AC 185, para 138 (a closely similar passage appears in Fordham's 4th edition (2004) at para 58.5):
I do not propose to explore further in this opinion the degree of deference due or latitude to be extended to a body such as the Commission, for this will be an issue in the substantive application for judicial review. It is sufficient at this stage to say that it is one of the issues which the court must take into account when considering the question of disclosure. 37. The Court of Appeal concluded (in paragraphs 22-23 of the judgment of Morgan J which I quoted) that the validity of rule 3.3 of the Commission's procedural rules required to be ascertained before the extent of disclosure of documents could be settled. Girvan J expressed the view, however, in the High Court that the interests of justice could, if it were required, override the provisions of rule 3.3. He said at paragraph 8 of his judgment:
I am in complete agreement with these propositions, the correctness of which was properly conceded by Mr McCloskey QC on behalf of the Commission. The court will clearly pay regard to the fact that statements and opinions were given to the Commission and its representatives on receipt of assurances of confidentiality and the importance of maintaining that flow of opinions and information in the future. It will no doubt seek to cause minimum disturbance to that confidence when assessing the requirements of justice in disclosure of the documents sought, bearing in mind always the principles laid down by the House in Science Research Council v Nassé [1980] AC 1028. It follows accordingly that the decision of the Court of Appeal cannot be supported and that the question of disclosure can be considered without waiting until the validity of rule 3.3 is the subject of adjudication. |
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