Official Information in UK Law

We wish to alert judges to the need to scrutinise applications for disclosure of details about informants with very great care. They will need to be astute to see that assertions of a need to know such details, because they are essential to the running of the defence, are justified. Even when the informant has participated, the judge will need to consider whether his role so impinges on an issue of interest to the defence, present or potential, as to make disclosure necessary.

That being so, whilst we appreciate the difficulty of this type of issue which faces judges, we have come to the conclusion that the learned judge's exercise of his discretion in the present case cannot be justified. Receiving the answer "No" to both those questions, it is unnecessary for us to pursue the other grounds.

That was a case in which the plaintiff asserted that a settlement that he had made was a reasonable settlement and the defendant asserted that it was not. The general rule however is still that stated in Rush & Tompkins Ltd v Greater London Council & Another [1989] AP 1280, namely that without prejudice negotiations once privileged remain privileged even after settlement.

The considerations are not ulterior: they are at the heart of the debate which these cases raise. There is a legitimate public interest in maintaining the confidentiality of advice within and between government departments on matters that will ultimately result, or are expected ultimately to result, in a ministerial decision. The weight to be given to those considerations will vary from case to case.

But this is not to say that the aide-memoire (see paragraph 30 above) was legally wrong or misleading. The want of a clear test in either the Act or the Rules made explanations of this kind inevitable. In many cases, perhaps most, it will have made little or no difference which formula was used. If the present case turned upon it, it would be necessary to make a close analysis of the PPC's decision in order to decide whether it had impermissibly raised the threshold.

The reason I think that the approach taken in that text book is correct is essentially grounded in the policy balance that one finds in the Directive and in the Regulations. No justification has to be shown for the disclosure in the first instance. The wording suggests at least that they must be considered exception by exception, and that includes the public interest that attaches to each exception.