Public Interest Immunity in UK Law

It may well be that, where there is no claim of confidentiality or public interest immunity or any objection on the ground of privilege, the courts follow a relaxed practice, allowing production on the basis of relevance. This is sensible, bearing in mind the extended meaning given to relevance in the Peruvian Guano case (1882) 11 Q.B.D. 55. But very different considerations arise if a reasoned objection to production is put forward.

The policy of the immunity is to enable people to speak freely without fear of being sued, whether successfully or not. If this object is to be achieved, the person in question must know at the time he speaks whether or not the immunity will attach. If it depends upon the contingencies of whether he will be called as a witness, the value of the immunity is destroyed.

The purpose of the rule is to ensure that one party does not enjoy an unfair advantage or suffer an unfair disadvantage in the litigation as a result of a document not being produced for inspection. It is, I think, of no importance that a party is curious about the contents of a document or would like to know the contents of it if he suffers no litigious disadvantage by not seeing it and would gain no litigious advantage by seeing it.

In very many cases where an investigating officer is appointed, there must be a real prospect of civil, criminal or disciplinary proceedings. That does not, of course, shut out the plaintiff if he is able to satisfy the judge, applying the familiar tests, that, on the facts of this case, the public interest in disclosure of the contents of these reports or any part of any of them, outweighs the public interest in preserving the confidentiality of these reports.

No matter what profession it may be, the common law does not impose on those who practise it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made. So too the common law makes allowance for the difficulties in the circumstances in which professional judgments have to be made and acted upon.

Like so many questions which raise the public interest, a decision one way will cause hardships to individuals while a decision the other way will involve disadvantage to the public interest. So the issue appears to me to be whether the abolition of the rule would probably be attended by such disadvantage to the public interest as to make its retention clearly justifiable.

But it would, in my view, be undesirable in the interests of the fair and efficient administration of justice to tolerate a system under which, as a sort of bye-product after the trial of an action and after any appeal or appeals, there were litigation upon litigation with the possibility of a recurring chain-like course of litigation. It would be a retrograde development if an advocate were under pressure unwarrantably to subordinate his duty to the Court to his duty to the client.