Judicial review

The House of Lords considered disclosure and inspection of documents in judicial review proceedings.

Held: It is desirable to substitute a more flexible and less prescriptive principle, which judges the need for disclosure in accordance with the requirements of the particular case.

The time has come to do away with the rule that there has to be a demonstrable contradiction or inconsistency in the respondent’s affidavit before disclosure will be ordered. It will not arise in most applications for judicial review, since they generally raise legal issues which do not call for disclosure of documents.

For that reason the courts are correct in not ordering disclosure in the same routine manner as it is given in ordinary civil procedure. Even in cases involving issues of proportionality, disclosure should be carefully limited to the issues which require it in the interests of justice.

Disclosure orders are therefore likely to remain exceptional in judicial review proceedings, even in proportionality cases, and the courts should continue to guard against what appear to be merely ‘fishing expeditions’ for adventitious further grounds of challenge.

Parties seeking disclosure should specify the particular documents or classes of documents they require. Confidentiality, on its own, does not prevent an order for disclosure if the interests of justice require it and there is no public interest which required that the documents should not be disclosed.