BCL Law Notes Principles of Civil Procedure Notes
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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Secret evidence: PII & CMPs
Types of secret evidence
Evidence unavailable to the court because kept secret (eg shielded by LPP)
Evidence available to court but unavailable to one or more of the parties (eg CMPs)
Evidence which is available to court & parties but withheld from public (eg in camera proceedings)
History
Crown Privilege (unreviewable) – Duncan v Cammell Laird [1942] (trials on new submarine design – submarine was submerged & never came back up – employees lost – families brought proceedings against shipbuilders for negligence in design of submarine – blueprints during wartime were sensitive – could backfire & frontfire D asserted Crown Privilege – that assertion is conclusive – not disclosed)
BUT Crown can get privilege just by asserting
Public benefits – particular parties suffer – is that distribution of burden appropriate?
Can’t assess liability & quantum without documents
CF if liability could be established another way & documents would show no negligence – Ds would suffer
Establishment of Public Interest Immunity – Conway v Rimmer [1968] (permitting non-disclosure for PII claim)
Balancing test – harm to public <> harm to administration of justice
Difficulty in case where – serious harm to public interest & cannot reach correct decision without evidence disclosed
Immunity over classes of documents effectively abolished in Ex parte Wiley (1994)
Carnduff v Rock (2001) — only case where PII asserted by Crown as defendant to civil claim, causing claim to be dismissed
grant of PII in action against police by informant alleging breach of alleged contract – could not be determined without looking at ‘contract’ – covered by PII
but AZ: alleged contract was illegal & unenforceable anyway?
Closed material proceedings: JSA 2013
Al Rawi (proceedings alleging torture – no common law power to conduct CMP in inherent power)
Rationale – better to decide with regard to all evidence while excluding parties, than by part evidence with some excluded for PII
Public Interest Immunity
= exception to disclosure
Tension with disclosure
In general court should have access to best evidence — any exclusion of relevant evidence calls for good justification: Lord Edmund-Davies in D v NSPCC
Art 6(1) ECHR — restriction on disclosure permitted if proportionate in pursuit of legitimate interest & subject to judicial scrutiny
Procedure
Application by party asserting PII — usually Minister as a party but could be anyone or even the court on its own motion: Rogers v Home Secretary (1973)
Minister can issue PII certificates – but have been heavily criticised: Al-Sweady (certificate over material that was already in the public domain — criticised by court and made indemnity costs order against gov)
Party seeking disclosure must show that docs would provide substantial support: Air Canada
Difficult if they haven’t seen them
But only need a real as opposed to fanciful chance: Goodridge (1999)
Balancing then conducted by the court
Special advocates can be appointed to help resolve the claim: AHK
Assertion that no relevant evidence
If party says that has no relevant evidence to disclose, then can’t go behind it
R v H per Bingham — may be necessary to have inspection of material by court, possibly aided by special advocate
Possible to make ex parte applications for disclosure of existence of docs & not serve order: CPR31.19(2) — ie total secrecy
May be that judge who inspects & then upholds PII claim should not determine substantive matter, as reasonable apprehension of bias: Ex parte Lilley (1995)
Balancing — Harm to public interest from disclosure <> harm to administration of justice generally and in the particular case by withholding
Public interest—
National security in time of war: Duncan v Cammell Laird (now CMPs available)
Proper functioning of public service: Re M (a minor)
Operation of local authority social work services: D v NSPCC (1978)
Ascertaining risk of harm to public interest on disclosure —
Ex parte Wiley (claim of PII in evidence collected under inquiry re police misconduct — asserted that disclosure would discourage further witnesses from coming forward but could not withhold from victims of police misconduct on this basis — that is the whole point of the inquiry — would discourage witnesses from coming forward as would be futile)
May depend on who has the documents as well as their contents: Lonrho (application for disclosure of tax documents balancing exercise in favour of disclosure)
<> Harm from withholding — to individual & administration of justice
EG whether marginal importance, whether can be obtained from other sources
Class-wide exemptions for PII require compelling public interest: Ex parte Wiley (allegations of police misconduct – documents subject to class-wide PII claim disclosure ordered – otherwise would have chilling effect)
Can refuse to disclose documents & existence of documents: CPR 31.19
Consequences of grant of PII
Documents can be redacted to provide a middle ground
If unsuccessful – open to all parties
If successful – inadmissible & can’t be relied on
Can also apply to withhold existence of documents as well as docs themselves
Waiver
PII cannot be waived as protects public interest — not a card for the gov to play as it wishes: Makanjuola per Bingham LJ
Follows that there is a duty to claim PII?
BUT can give weight to decision of government officials choosing to disclose voluntarily: Horseferry (CPS handing over documents to D that were potentially subject to PII claim)
Criminal contexts
Keane per Lord Taylor — if disputed material may prove defendant’s innocence, then balance comes down “resoundingly” in favour of disclosure
IE State can’t have both secrecy & prosecution — must either disclose or drop prosecution
R v H (charge of conspiracy to supply drugs — PII asserted over investigation if material weakens...
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A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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