Pii Cmps Notes
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Pii Cmps Revision
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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  (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) o BUT Crown can get privilege just by asserting o 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 
(permitting non-disclosure for PII claim) o Balancing test - harm to public harm to administration of justice o 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 o 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 o but AZ: alleged contract was illegal & unenforceable anyway?
Closed material proceedings: JSA 2013 o Al Rawi (proceedings alleging torture - no common law power to conduct CMP in inherent power) o 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
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) o 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) o 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) o Balancing then conducted by the court
Special advocates can be appointed to help resolve the claim: AHK
Assertion that no relevant evidence o If party says that has no relevant evidence to disclose, then can't go behind it o 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
o National security in time of war: Duncan v Cammell Laird (now CMPs available) o Proper functioning of public service: Re M (a minor) o Operation of local authority social work services: D v NSPCC (1978) o 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 o 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) o Can refuse to disclose documents & existence of documents: CPR
31.19 Consequences of grant of PII o Documents can be redacted to provide a middle ground o If unsuccessful - open to all parties o If successful - inadmissible & can't be relied on
Can also apply to withhold existence of documents as well as docs themselves
PII cannot be waived as protects public interest — not a card for the gov to play as it wishes: Makanjuola per Bingham LJ o Follows that there is a duty to claim PII?
o 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 o 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 Crown case or strengthens defence case must be disclosed — if would not prejudice, then derogation must be minimum necessary) — Set out 7 steps, in essence—
o Full disclosure if weakens crown case or if not a real risk of serious prejudice to important public interest o Limited disclosure permitted provided that the minimum necessary to protect public interest & does not render trial process unfair o Must keep under review as trial progresses
R v Davis (anonymity of witnesses — risk of intimidation could not deny right to confront prosecution witnesses)
o Dreaming up defence to get disclosure — eg asserting that informant duressed D in order to get disclosure, or have prosecution dropped Civil contexts — Refuse to hear on the basis that cannot be fairly heard?
Carnduff v Rock (2001) (police informant claimed remuneration — asserted contract with police — applied for disclosure — police applied to strike out By majority, struck out — application of PII causes unfairness rendering matter untriable)
The only case since Conway v Rimmer in which PII has been successful with the result that the plaintiff loses his case o At odds with CMP justification — if information not disclosed, then C's claim may fail — Produces CMP situation — in C's interest that disclosed to court even if not to them Laws LJ: Court would have to examine in detail interactions with police —
concerned about police having to make concessions — case which can only be justly tried Criticisms — Illogical to strike out —
o Not abusive under CPR 3.4 as brought in good faith o Not groundless as even if evidence not disclosed, applicant would have given evidence that would have to be evaluated
Best explanation of the case — that PII claim upheld
But trial should have proceeded without evidence
And struck out before disclosure commenced — no consideration of summaries, redacted copies, etc o If striking out because not possible to have a fair trial — then are not achieving that goal by striking it out Picked up in Al Rawi (2012) (common law CMP not permissible) o Argued for CMP on the basis of (a) public interest and (b) economy as determining large number of PII claims would be expensive & timeconsuming o Majority — CMP not permitted by common law o Mance & Hale in dissent — CMP permitted only by consent
Mance — presuming correctness of Carnduff — successful PII claim can make claim untriable and strike out — so should be able to consent to CMP
BUT no party submitted the claim in Al Rawi would be untriable or should be struck out under Carnduff
And Al Rawi's claim prima facie valid, whereas alleged contract in Carnduff may have been illegal o Clarke — CMP permitted without statutory authority or consent o Government settled claim rather than litigate & reveal evidence
Accepted (reconstrued?) in Tariq (2012)
Lord Mance for the majority — if disclosure would harm public interest, then disclosure not possible and fair trial not possible — renders not justiciable Reconstruction — cannot be tried merely because claimant bound to lose
AHK (refusal of citizenship applications with no reasons — invoked national security) o Cannot go behind Sec of State's assertion of public interest —
evidence means that claimant cannot win — makes case untriable only because C cannot win o Carnduff, non-justiciability based on unfairness generally
CF in HC (allegation of UK government complicity in arrest & torture) o I am convinced that the information is such that no court could fairly try the case without this material (or most of it). This is a case which
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