[HOUSE OF LORDS]

AND

AND

Industrial Relations - Industrial tribunals - Procedure - Discovery and inspection of documents - Complaint of discrimination on grounds of sex and trade unionism - Complaint of racial discrimination - Discovery of documents concerning other employees requested in both cases - Discretion of tribunal chairman or judges in county court to inspect documents and rule on disclosure - County Court Rules, Ord. 14, rr. 1, 2 - Industrial Tribunals (Labour Relations) Regulations 1974 (S.I. 1974 No. 1386), Sch., r. 4 (2) (a) (b)

Practice - Discovery - Privilege - Confidentiality - Complaints by employees of discrimination - Whether employers obliged to disclose documents relating to other employees

A married woman clerical officer employed by a research council run on civil service lines was passed over for interview for promotion to executive officer grade when two colleagues, a man and a single woman, were selected. She filed complaints with an industrial tribunal alleging discrimination on grounds of sex and married status, contrary to the Sex Discrimination Act 1975, and on the ground of her active trade unionism, contrary to section 53 (1) of the Employment Protection Act 1975. Before the hearing she applied under rule 4 (1) of the Rules of Procedure scheduled to the Industrial Tribunals (Labour Relations) Regulations 1974 for discovery and inspection, inter alia, of recent annual confidential reports, not only on herself but also on the two colleagues selected for interview. The council, whose routine system of operation included annual detailed confidential assessments on every employee, while ready to produce the confidential reports on the applicant herself, objected to produce those relating to the two selected colleagues. The tribunal ordered their disclosure, and on the council's appeal the Employment Appeal Tribunal (Bristow J. presiding) confirmed the order as clearly necessary to do justice to both parties at the hearing. One of the two candidates at once objected that a personal report which he had not seen himself and the contents of which he had had no opportunity to challenge should be made available to a third party; and his objection was supported by the staff side of the Whitley Council as contrary to the policy agreed between the council and the staff side. On the council's appeal to the Court of Appeal a

fresh affidavit on its behalf was admitted, stating that the council's system of confidential reports on every employee was used throughout the civil service, by many local and educational authorities, and by businesses throughout the country, and that in the sphere of employment real harm could be caused by such disclosure.

A methods analyst of Asian origin employed by a large industrial concern applied for a level transfer at the works; he and three white candidates were interviewed for the post. Two of them were successful; he was not. He sought help from the Commission for Racial Equality under the provisions of the Race Relations Act 1976 to claim discrimination on the grounds of race, colour, ethnic or national origins, and asked for preliminary discovery of, inter alia, records kept by the company on the other persons interviewed and the interview panel's completed forms relating to all the persons interviewed for the post. The employers were ready to disclose some information and documents on all the candidates and explained their system on considering promotion but objected to produce confidential reports on the other persons interviewed and the interview panel's forms. The chairman of the industrial tribunal upheld the objection; but on the applicant's appeal the Employment Appeal Tribunal (Phillips J. presiding) followed its own previous decision and ordered discovery, though with some reservations. On the employers' appeal to the Court of Appeal, a fresh affidavit was admitted, stating, inter alia, that if the particular documents were disclosed it would be in gross breach of faith and could lead to industrial trouble; and it was argued for them that "public interest privilege" should attach to all such confidential records kept by all industrial concerns.

The Court of Appeal allowed the appeals of the council and the employers.

On appeal by the applicants: -

Held, dismissing the appeals, (1) that, while no principle of public interest immunity protected such confidential documents and they were not immune from discovery by reason of confidentiality alone, the tribunal, in the free exercise of its discretion to order discovery, should have regard to the fact that they were confidential and that discovery would be a breach of confidence, so that, accordingly, relevance alone, though a necessary ingredient, did not provide an automatic test for ordering discovery, the ultimate test being whether discovery was necessary for disposing fairly of the proceedings and, in order to decide whether it was necessary, the tribunal should inspect the documents, considering whether special measures such as "covering up" or hearing in camera should be adopted and following procedures which would avoid delay and unnecessary applications (post, pp. 1065D - 1066B, 1071B-E,E - 1072A, 1073C-D, 1074F-G, 1077A, 1082C, 1085E-F, 1087E, 1088F-G, 1089C-G).

(2) That in both the present cases the tribunals had erred in that they had not complied with those requirements or applied those tests (post, pp. 1068F - 1069A, 1072H - 1073B,1077G - 1078A, F, 1087A-B, 1089H - 1090A).

Decisions of the Court of Appeal [1979] Q.B. 144; [1978] 3 W.L.R. 754; [1978] I.C.R. 1124; [1978] 3 All E.R. 1196 affirmed.

The following cases were referred to in their Lordships' opinions:

Argyll (Duke) v. Argyll (Duchess), 1962 S.C.(H.L.) 88, H.L.(Sc.).

Attorney-General v. Clough [1963] 1 Q.B. 773; [1963] 2 W.L.R. 343; [1963] 1 All E.R. 420.

Attorney-General v. Mulholland [1963] 2 Q.B. 477; [1963] 2 W.L.R. 658; [1963] 1 All E.R. 767, C.A.

Attorney-General v. North Metropolitan Tramways Co. [1892] 3 Ch. 70; (1895) 72 L.T. 340, C.A.

British Railways Board v. Natarajan [1979] I.C.R. 326; [1979] 2 All E.R. 794, E.A.T.

Conway v. Rimmer [1967] 1 W.L.R. 1031; [1967] 2 All E.R. 1260, C.A.; [1968] A.C. 910; [1968] 2 W.L.R. 998; [1968] 1 All E.R. 874, H.L.(E.).

Crompton (Alfred) Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1974] A.C. 405; [1973] 3 W.L.R. 268; [1973] 2 All E.R. 1169, H.L.(E.).

D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171; [1977] 2 W.L.R. 201; [1977] 1 All E.R. 589, H.L.(E.).

Duncan v. Cammell Laird & Co. Ltd. [1942] A.C. 624; [1942] 1 All E.R. 587, H.L.(E.).

Grosvenor Hotel, London, In re (No. 2) [1965] Ch. 1210; [1964] 3 W.L.R. 992; [1964] 3 All E.R. 354, C.A.

Hopkinson v. Lord Burghley (1867) L.R. 2 Ch.App. 447.

Lane v. Gray (1873) L.R. 16 Eq. 552.

Leighton v. Construction Industry Training Board [1978] I.C.R. 577; [1978] 2 All E.R. 723, E.A.T.

McIvor v. Southern Health and Social Services Board [1978] 1 W.L.R. 757; [1978] 2 All E.R. 625, H.L.(N.I.).

North British Railway Co. v. Garroway (1893) 20 R. 397.

Oxford v. Department of Health and Social Security [1977] I.C.R. 884, E.A.T.

Reg. v. Lewes Justices, Ex parte Secretary of State for the Home Department [1973] A.C. 388; [1972] 3 W.L.R. 279; [1972] 2 All E.R. 1057, H.L.(E.).

Senior v. Holdsworth Ex parte Independent Television News Ltd. [1976] Q.B. 23; [1975] 2 W.L.R. 987; [1975] 2 All E.R. 1009, C.A.

Stone v. Charrington & Co. Ltd. (unreported), February 15, 1977, E.A.T.

Whitham v. Whitham (1884) 28 S.J. 456.

The following additional cases were cited in argument:

Adams v. Adams (Attorney-General intervening) [1971] P. 188; [1970] 3 W.L.R. 934; [1970] 3 All E.R. 572.

Ahmad v. Inner London Education Authority [1978] Q.B. 36; [1977] 3 W.L.R. 396; [1977] I.C.R. 490; [1978] 1 All E.R. 574, C.A.

Alterskye v. Scott [1948] 1 All E.R. 469.

Attorney-General v. British Broadcasting Corporation [1979] 3 W.L.R. 312; [1979] 3 All E.R. 45, C.A.

Blathwayt v. Baron Cawley [1976] A.C. 397; [1975] 3 W.L.R. 684; [1975] 3 All E.R. 625, H.L.(E.).

Broome v. Cassell & Co. Ltd. [1972] A.C. 1027; [1972] 2 W.L.R. 645; [1972] 1 All E.R. 801, H.L.(E.).

Burmah Oil Co. Ltd. v. Governor and Company of the Bank of England [1979] 1 W.L.R. 473; [1979] 2 All E.R. 461, C.A.

Burns v. Thiokol Chemical Corporation (1973) 483 F. 2d 300.

Carr v. Monroe Manufacturing Co. (1970) 431 F. 2d 384.

Commission for Racial Equality v. British Broadcasting Corporation (unreported), November 17, 1977, Westminster County Court (Judge Ruttle).

Compagnie Financière et Commerciale du Pacifique v. Peruvian Guano Co. (1882) 11 Q.B.D. 55, C.A.

Constantine v. Imperial Hotels Ltd. [1944] K.B. 693; [1944] 2 All E.R. 171.

Cumings v. Birkenhead Corporation [1972] Ch. 12; [1971] 2 W.L.R. 1458; [1971] 2 All E.R. 881, C.A.

Distillers Co. (Biochemicals) Ltd. v. Times Newspapers Ltd. [1975] Q.B. 613; [1974] 3 W.L.R. 728; [1975] 1 All E.R. 41.

Edwards v. Society of Graphical and Allied Trades [1971] Ch. 354; [1970] 3 W.L.R. 713; [1970] 3 All E.R. 689, C.A.

Ehrmann v. Ehrmann [1896] 2 Ch. 826.

Ellis v. Home Office [1953] 2 Q.B. 135; [1953] 3 W.L.R. 105; [1953] 2 All E.R. 149, C.A.

Etherington v. Henry J. Greenham (1929) Ltd. (1969) 4 I.T.R. 226, D.C.

Fears v. Burris Manufacturing Co. (1971) 436 F. 2d 1357.

Georgia Power Co. v. Equal Employment Opportunity Commission (1969) 412 F. 2d 462.

Gouriet v. Union of Post Office Workers [1978] A.C. 435; [1977] 3 W.L.R. 300; [1977] 3 All E.R. 70, H.L.(E.).

Humphreys v. Board of Managers of St. George's Church of England (Aided) Primary School [1978] I.C.R. 546, E.A.T.

König Case (1977) 27 Publications of the European Court of Human Rights.

McDonnell Douglas Corporation v. Green (1972) 411 U.S. 792.

McGuinness v. Attorney-General of Victoria (1940) 63 C.L.R. 73.

Malone v. Metropolitan Police Commissioner [1979] Ch. 344; [1979] 2 W.L.R. 700; [1979] 2 All E.R. 620.

Nagle v. Feilden [1966] 2 Q.B. 633; [1966] 2 W.L.R. 1027; [1966] 1 All E.R. 689, C.A.

Norman v. Mathews (1916) 85 L.J.K.B. 857, D.C.

Norwich Pharmacal Co. v. Customs and Excise Commissioners [1974] A.C. 133; [1973] 3 W.L.R. 164; [1973] 2 All E.R. 943, H.L.(E.).

Pardy's Mozambique Syndicate Ltd. v. Alexander [1903] 1 Ch. 191.

Peruvian Guano Co., In re Ex parte Kemp [1894] 3 Ch. 690.

Petre v. Sutherland (1887) 3 T.L.R. 275, C.A.

Rasul v. Commission for Racial Equality [1978] I.R.L.R. 203, E.A.T.

Reading University v. MacCormack [1978] I.R.L.R. 490, E.A.T.

Reg. v. Lemon [1979] A.C. 617; [1979] 2 W.L.R. 281; [1979] 1 All E.R. 898, H.L.(E.).

Reg. v. Miah [1974] 1 W.L.R. 683; [1974] 2 All E.R. 377, H.L.(E.).

Reg. v. Wells Street Stipendiary Magistrate, Ex parte Deakin [1980] A.C. 477; [1979] 2 W.L.R. 665; [1979] 2 All E.R. 497, H.L.(E.).

Riddick v. Thames Board Mills Ltd. [1977] Q.B. 881; [1977] 3 W.L.R. 63; [1977] 3 All E.R. 677, C.A.

Rothfield v. North British Railway Co., 1920 S.C. 805.

Senior v. Holdsworth, Ex parte Independent Television News Ltd. [1976] Q.B. 23; [1975] 2 W.L.R. 987; [1975] 2 All E.R. 1009, C.A.

Sunday Times Case (1979) European Court of Human Rights (Text published by the Council of Europe at Strasbourg).

Warner-Lambert Co. v. Glaxo Laboratories Ltd. [1975] R.P.C. 354, C.A.

Wheeler v. Le Marchant (1881) 17 Ch.D. 675, C.A.

APPEALS from the Court of Appeal.

The first appeal was an interlocutory appeal (by leave of the House of Lords given on October 19, 1978) from an order of the Court of Appeal (Lord Denning M.R., Lawton and Browne L.JJ.) allowing the appeal of the present respondents, the Science Research Council, from an order of the Employment Appeal Tribunal dated March 19, 1978, whereby it ordered that the respondents should disclose to the present appellant, Joan Marguerite Nassé, annual confidential reports for the years 1975 and 1976 on two clerical officers, formerly her colleagues, and relevant parts of the minutes of the local review board relating to the decision to recommend those officers for promotion and not to recommend the appellant. In so doing the Employment Appeal Tribunal affirmed the decision of the chairman of the industrial tribunal given in writing on November 23, 1977, following an interlocutory application by the appellant for an order for inspection of those documents.

The second appeal was also an interlocutory appeal by leave of the House of Lords from an order of the Court of Appeal made on the same day as the order in the other appeal allowing an appeal by the present respondents, Leyland Cars (formerly British Leyland U.K. Ltd., now B.L. Cars Ltd.), from an order of the Employment Appeal Tribunal dated April 28, 1978, whereby it ordered that they should disclose to the present appellant, Nat Vinu Vyas, divers specified documents of a confidential character pertaining to applications and interviews for the advertised position of methods analyst, grade 9. In so ordering the tribunal reversed a decision of the chairman of the industrial tribunal given by letter dated March 14, 1978, refusing an application made on behalf of the appellant for an order for disclosure of those documents.

The main issue raised by these appeals was as to the manner in which the discretionary powers conferred on industrial tribunals to order discovery and inspection of documents should be exercised in cases of alleged racial or sexual discrimination in the field of employment when the complainant seeks disclosure of confidential assessments and/or references relating to the complainant and to other persons. The appeals also concerned the exercise of the powers conferred on the county courts to order discovery and inspection of documents in cases of racial or sexual discrimination under Part III of both the Race Relations Act 1976 and the Sex Discrimination Act 1975 and in other statutory and common law proceedings. The appeals raised the issue as to the proper balance to be maintained between the right to an effective remedy for the civil wrong of unlawful discrimination or other civil wrongs and respect for privacy and confidentiality of communications on the part of respondents or defendants or third parties to civil proceedings.

The facts are stated in the opinions of Lord Wilberforce, Lord Edmund-Davies and Lord Fraser of Tullybelton.

Anthony Lester Q.C. and Frederic Reynold for the second appellant. Before the Court of Appeal leading counsel for the second appellant, Nat Vinu Vyas, represented the Equal Opportunities Commission and the Commission for Racial Equality, though not truly as amicus curiae since the two statutory bodies have special interests. It is not clear from the decision of

the Court of Appeal whether their powers are affected or not. Application is now made to be allowed to make submissions "under two hats" for the appellant Vyas and for the two commissions. This case raises questions of public policy on which they may have a view and they are entitled to be heard: see Adams v. Adams (Attorney-General intervening) [1971] P. 188, 198.

LORD WILBERFORCE: After your submissions for the appellant Vyas you ay make submissions as to the effect on the statutory bodies.

LORD EDMUND-DAVIES: But that is an indulgence which can only be allowed with the consent of the other side.

Raymond Kidwell Q.C. and Frederic Reynold for the first appellant. Discovery should be refused in any case where it would be oppressive and when the application for it is frivolous or vexatious. But it is paramount in the interests of justice that relevant material should be disclosed. Conway v. Rimmer [1968] A.C. 910 involved a report of exactly the same type as those in question here. The paramount public interest is full and frank disclosure of every document which may be of benefit to the other side.

In practically every case of this nature the records will be the most important documents from the point of view of the employee as showing how the candidates stood in relation to each other. But the practical effect of the decision of the Court of Appeal in this case is almost to create a privilege not to disclose. But full and frank disclosure is paramount in the interests of justice unless some weighty matter requires otherwise.

The whole principle of preventing discrimination under the Employment Protection Act 1975, the Sex Discrimination Act 1975 and the Race Relations Act 1976 would be unworkable from the employee's point of view if the employer does not disclose how his decision was reached. The employee could not give secondary evidence of documents which existed but had not been put in.

The fundamental test is relevance. The interests of justice provide the only safe starting point. Then one must see whether anything outweighs their application. It is wrong to regard confidentiality as the starting point and see whether anything outweighs it. That would impose an unduly heavy burden.

There are spheres of discrimination other than employment, e.g., education and housing. The end of it all is the necessity of doing justice to the applicant.

The relevant statutes are the Sex Discrimination Act 1975, ss. 1, 3 (1), 6 (1) (2), 22, 29, 53, 57, 61, and the Race Relations Act 1976. The law has evolved a way to deal with these new fields of dispute. Under the Industrial Tribunals (Labour Relations) Regulations 1974 industrial tribunals have many of the attributes of a court: see the rules of procedure in the Schedule, rr. 4 (1) and (2) and 6 (1), as to granting discovery and as to the hearing. It is there recognised that information may be confidential and that is dealt with. See also sections 56 and 57 of the Industrial Relations Act 1971.

Discovery and inspection of documents in the High Court are governed by R.S.C., Ord. 24, rr. 1, 2, 3, 5, 7 (1), 7A, 9, 11, 13, 16, which are the rules relevant in the present case. The County Court Rules, Ord. 4, rr. 2 and 3, indicate that the principles of discovery are the same as in the High Court.

In the Court of Appeal in this case Lord Denning M.R. drew the line so tight as to strangle the Act and the freedom of action of complainants. The hearing is not the proper time for discovery to be considered.

It is admitted that the revelation of confidential reports could possibly cause industrial unrest, but that is remote though the tribunal should not dismiss it entirely from its mind. A balance should be made between the public interest in preserving confidentiality and the interest of justice in a full and frank disclosure. An overwhelming public interest in non-disclosure might outweigh the other interests.

The authorities show that the former approach to Crown privilege has been reversed so as to abolish the routine claim of privilege for all public documents. The concept of Crown privilege has fallen into disuse, so that now if there is a public interest arising from a statutory duty or in other ways there does not have to be a direct association with the Crown. Nor is the matter put on the footing of privilege, since privilege can usually be waived.

Confidentiality is not in itself enough to defeat disclosure or confer immunity. (It does not do so in the case of patients and doctors.) There must be something more. In the case of the first appellant there is no confidentiality calling for the preservation of immunity. There is no sufficient public interest to maintain such confidentiality. The prospect of industrial unrest is too remote to weigh in the scale. There is no public interest in the preservation of confidentiality in such reports as those which the first appellant wishes to be disclosed.

In all cases in which the question of discovery arises under a statute the policy and motives of the Act must be regarded as of paramount importance. One must examine the intentions of Parliament. Here Parliament directed the ordinary rules of discovery to apply.

The judge is entitled to use his discretion but he cannot take into account the opposition of a third party to having his secrets revealed. Such documents as these should be disclosed, subject only to cases, which are likely to be very rare, where the employer can point to some secret information which can be covered up or exercised without detriment to the applicant's case. The person who was the subject of a particular report might appear in court and require part of it to be excised. The choice is between confidential documents never being disclosed or else the ordinary principles of discovery applying. In the case of these documents there is only confidentiality to be put in the scale against discovery and that is not enough. In many cases material such as this will be useful and necessary. There is no privilege known to the law which the respondents can invoke to defeat discovery, though the judge will temper the wind in so far as that is consistent with the overriding interests of justice.

As to confidentiality see paragraphs 3-7, 41, 46, 48, 49, 51 and 54 of the 16th report of the Law Reform Committee (Privilege in Civil Proceedings) (1967) (Cmnd. 3472).

The authorities on the general principles of discovery relied on are: Wheeler v. Le Marchant (1881) 17 Ch.D. 675, 680-681; Stone v. Charrington & Co. Ltd. (unreported), February 15, 1977; Rasul v. Commission for Racial Equality [1978] I.R.L.R. 203 and Oxford v. Department of Health and Social Security [1977] I.C.R. 884.

The authorities on Crown privilege relied on are: Conway v. Rimmer [1968] A.C. 910, 941-943, 952, 971, 972; Reg. v. Lewes Justices Ex parte Secretary of State for the Home Department [1973] A.C. 388, 400-402, 405, 406-407, 408-409, 411-412; Norwich Pharmacal Co. v. Customs and Excise Commissioners [1974] A.C. 133, 140-141, 175, 176; Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1974] A.C. 405, 426-427, 427-428, 429-430; D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171, 223, 230, 231, 245, 246; Burmah Oil Co. Ltd. v. Governor and Company of the Bank of England [1979] 1 W.L.R. 473, 485, 489; Ellis v. Home Office [1953] 2 Q.B. 135, 136, 146; Attorney-General v. Clough [1963] 1 Q.B. 773 and Attorney-General v. Mulholland [1963] 2 Q.B. 477.

The questions arising are: (1) Are documents of the class under consideration (i.e., personal employment records relating to persons not parties to the litigation, made on assurance and understanding of confidentiality such that significant harm would be caused by disclosure) required or entitled to be withheld from inspection on grounds of a public interest immunity?

(2) If not, and assuming that those documents relate to a question in the proceedings, have the county courts and the industrial tribunals a discretion to monitor and regulate discovery (including inspection) so as to preserve the confidentiality of the documents to the utmost extent consistent with the doing of justice in a particular case?

(3) If so, should the industrial tribunals exercise that discretion and, if so, what considerations should in the ordinary way govern its exercise?

As to public interest immunity: (1) The primary interest of the law lies in the disclosure of all relevant documents so that justice may be done and may be seen to be done: Ellis v. Home Office [1953] 2 Q.B. 135.

(2) Relevance is generously construed: In re Peruvian Guano Co., Ex parte Kemp [1894] 3 Ch. 690.

(3) The interest of the law in full disclosure may be regarded as a weighty constant always present in the scales of justice.

(4) Exceptionally the possessor of a document may successfully assert an overriding public interest which, placed in the opposite scale, precludes production. Where this can be successfully asserted, anyone else may draw the peril to the public interest to the attention of the court, and it is the duty of the court to act on its own initiative to exclude such a document.

(5) It is the essential characteristic of public interest immunity that it is not a privilege vested in a person who may waive such a privilege, but a quality inherent in the document itself; no one may waive public interest immunity.

(6) The weight of the public interest in full and frank disclosure of all relevant documents is so great that only in rare circumstances will another public interest be held to outweigh it. Conway v. Rimmer [1968] A.C. 910 illustrates the demise of another point of view.

(7) It has been established for 100 years that confidentiality alone will not outweigh the prime importance of full and frank disclosure. It has been stated by the courts that confidentiality may be an ingredient in protection, but always there have been other ingredients, when protection has been granted, which form the basis of protection, confidentiality being merely incidental.

(8) When a claim to public interest immunity has succeeded the documents have always been close to central administration or close to the administration of justice.

(9) It is an absurdity that public interest immunity should be extended to the records of a dubious clothing manufacturer who is involved in a discrimination claim.

(10) Finally, but most important, the policy and motive of the relevant statutes and rules must cast great light on the intention of Parliament as regards discovery. In the present case the intention is clearly in favour of ordinary, if not more generous, discovery, certainly not in favour of capricious restriction of principles which have been established in the general law for 100 years.

As to the link: (1) In the past anyone seeking to protect his documents has acknowledged that either he must demonstrate an established privilege (which is not claimed here) or he must bring himself within public interest immunity, or he must fail. That is a correct principle. No one has ever attempted to use an argument which failed under these heads to establish a special position, quasi privilege, which would effectively put him in the same protected position in most cases which might come before the courts.

(2) In the present case, if British Leyland are right, there will be an absolute prohibition in the use, either by complainant or employer, of "confidential" records on other employees. Nothing will be left to county courts or industrial tribunals in this sphere, since the decision of the House of Lords will be definitive.

(3) In the present case, if the claimants are right, public interest immunity will be rejected and at this stage of the analysis the decision will simply be: "Let the ordinary principles of discovery prevail."

As to discovery generally and in the present context it is submitted: (1) The law's primary interest is in the disclosure of all relevant documents that justice may be done and seen to be done.

(2) Relevance is generously construed.

(3) All questions of "balancing" will have already been decided in the House of Lords on the public interest argument. "Balancing" between disclosure and confidentiality as an abstract concept is not then within the sphere of the county court or tribunal.

(4) So far as may be necessary the policy and motive of the legislation may be invoked in this context, coupled with the plain directions contained in the rules. Strictly speaking it is no longer necessary to invoke the policy of the Acts in this context since by definition, after the question of public interest immunity has been resolved, ordinary principles apply.

(5) Following the ordinary principles of discovery there should be a general order for discovery and inspection (how else can it be limited at that stage?) with free access offered to the employer, as is his entitlement, to come and object, or claim limitations.

(6) A plea that documents are confidential, without more being said, will be automatically rejected; the House of Lords will have rejected such a claim.

(7) "Comparability" records of successful or interviewed employees, being the material most likely to be relevant to the claims of both sides in the case, will be disclosed.

(8) The principle of relevancy will be paramount: such records are very likely to be relevant and this principle will prevail over all others.

(9) In a rather vague, but often effective, way the civilised principle of protecting everyone from unnecessary disclosure of sensitive and irrelevant personal information has been borne in mind by the court, and this attitude should obviously continue. The device of covering up and paraphrasing irrelevant hurtful information should be borne in mind.

(10) However, the suppression of information extends only to entries which satisfy all the criteria mentioned. If the information is relevant (i.e., necessary) then it must be disclosed, however hurtful.

(11) No special guide lines are needed. All that is needed is a declaration that the ordinary principles of discovery apply, coupled perhaps with a reminder of the power of the court to give protection exceptionally against irrelevant hurt.

(12) The gulf between the Court of Appeal viewpoint and the contentions of the appellants emerges from what has been submitted.

(13) There is no middle ground unless an illogical and unacceptable enlargement of public interest immunity and confidentiality represents the law.

Selection for promotion depended on the facts in the comparability records and the policy of the Act will not be worked according to the interests of justice unless those records are disclosed. It would be unjust if an employer could put in comparability records when it suited him and could withhold them when it did not. Justice would neither be done nor be seen to be done. Parliament did not trust all employers to be fair in this.

Lester Q.C. for the second appellant. (1) The history of statutory provisions relating to the disclosure of information and the protection of confidentiality in the labour law and anti-discrimination statutes indicates that: (a) Parliament has had specific regard to this problem on numerous occasions; (b) Parliament has prescribed specific but limited measures to protect confidentiality; (c) It was otherwise the intention of Parliament that the well-recognised principles, rules and practices of the common law should apply as regards discovery, inspection and the admissibility of evidence.

(2) The history and scheme of the Race Relations and Sex Discrimination Acts reveal that it was Parliament's intention to treat invidious discrimination on grounds of race or sex as a civil wrong for which the normal civil remedies should be available, including the normal interlocutory procedures available in civil proceedings generally.

(3) It would be contrary to the aims and policy of the anti-discrimination legislation to impose special restrictions upon the ordering of discovery and inspection (such as were imposed under the quasi-immunity enunciated by the Court of Appeal) or upon discovery and inspection and the admissibility of evidence (such as are contended for by Leyland Cars).

(4) It is not open to Leyland Cars in the present case to claim public interest immunity, since they are asserting private rights as distinct from public rights; the public interest immunity exists for the protection of public rights in the field of public law (cf. the speech of Lord Wilberforce in Gouriet v. Union of Post Office Workers [1978] A.C. 435, 478-479 and the judgment of Scarman L.J. in D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171, 197, whose reference to public law was not subsequently questioned, still less overruled, by the House of Lords in that case). The public law nature of public interest immunity provides a modern and coherent rationale of the decided cases. The public law nature of the immunity also explains the peculiar characteristics of the immunity, for example: (a) the public nature of the rights and interests which the immunity is designed to protect; (b) the fact that in litigation between private individuals it is the duty of the parties to draw the attention of the Crown to the possibility that the disclosure or production of documents could or might be injurious to the public interest (Halsbury's Laws of England, 4th ed., vol. 13 (1975), para. 88, p. 70); (c) the fact that if the Crown learns, whether from a party or otherwise, that such privileged documents may be disclosed or produced, the Treasury Solicitor, or the solicitor for the appropriate department, may direct the party likely to make, or be called upon to make, the disclosure or production to claim public interest immunity (ibid.); (d) the fact that the Crown may, if necessary, be allowed to intervene in the proceedings to be heard on the question and to support its objection to disclosure on production (ibid.); (e) the fact that, in the last resort, the judge himself can and should take the objection (ibid.); (f) the fact that the immunity can only be claimed and waived by the authority of the Crown and not by the authority of the person to whom the document relates: Halsbury's Laws of England, 4th ed., vol. 13, para. 87, p. 69.

(5) If the appellant is wrong in his primary submission just stated, so that it is open to Leyland Cars to claim public interest immunity notwithstanding that they are asserting only private rights, then: (i) The categories of public interest immunity should be confined so as to ensure conformity with the United Kingdom's obligations under article 6 (1) of the European Convention on Human Rights. (ii) The extension of the categories proposed by Leyland Cars would be contrary to article 6 (1) as interpreted by the Court of Human Rights in König Case (1977) 27 Publications of the European Court of Human Rights and the Sunday Times Case (1979) European Court of Human Rights (Text published by the Council of Europe at Strasbourg). (iii) It would also be contrary to the fundamental principle of proportionality as interpreted and applied by the European Court of Human Rights; that is, where a legitimate aim is pursued, the means employed must be proportionate to the aim. (iv) It would also frustrate the policy and the operation of the Race Relations and Sex Discrimination Acts and would therefore be contrary to the intention of Parliament. (v) In any event, the policy interests relied on by Leyland Cars (and by the Science Research Council) do not justify the extension of public interest immunity to the circumstances of these appeals. (vi) The courts should cause the balance to be maintained in the interests of justice, that is: (a) the requirement of a fair hearing of the matters in issue in the proceedings, and

(b) the effective performance of the duties and the effective exercise of the powers of the Commission for Racial Equality and the Equal Opportunities Commission in carrying out their crucial strategic functions under the two statutes. (6) The submissions just made also apply to the quasi-immunity enunciated by the Court of Appeal and the restriction on discovery and inspection contended for by the Science Research Council advanced on public policy grounds.

(7) As regards the contention that disclosure of confidential information would be likely to have an adverse effect on industrial relations, it is submitted that: (i) As a matter of international law the courts of the United Kingdom are public authorities for whose actions and decisions the United Kingdom government is responsible: Sunday Times Case (1979) European Court of Human Rights (Text published by the Council of Europe at Strasbourg), paras. 43, 44, 45 and 67. (ii) The avoidance of possible industrial unrest at the expense of a fair hearing is not a legitimate aim within the scope of article 6 (1) of the Convention on Human Rights. (iii) The United Kingdom government would be responsible in international law for any failure by the courts of the United Kingdom faced with actual or threatened industrial unrest to maintain their authority (article 10 (2) and The Sunday Times Case, para. 55) and to protect the right to a fair hearing guaranteed by article 6 (1). (iv) For the House of Lords to accede to the submission of Leyland Cars that the appellants should be denied access to and use of information relevant to the determination of their civil rights so as to avoid possible industrial unrest would be contrary to article 6 (1). (v) In any event it is fundamental to the rule of law that the courts should maintain their independence and authority in the face of direct and indirect pressures, whether as to the result of fears of possible industrial unrest or otherwise in performing their judicial functions: the possible reaction of third parties to the disclosure of confidences of legal proceedings is an irrelevant consideration; and the evidence of possible industrial unrest is of insufficient probative value. The courts should reject threats to their independence in administering adjectival as well as substantive law.

(8) The law favours the disclosure in legal proceedings of relevant material in the interest of justice and confines the power of the courts to withhold documents and information from disclosure within well-defined and clearly ascertained limits: D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171, 223D-E. The key to the proper exercise of judicial discretion in deciding in a contested case whether to order discovery is in the procedural rules of the county courts, the industrial tribunals and the High Court from which they are derived: County Court Rules, Ord. 14, rr. 2 (2), 3 (6); Industrial Tribunals (Labour Relations) Regulations 1974, r. 4; R,S.C., Ord. 24, rr. 3, 5, 8. The golden rule applying in this case is that discovery or inspection will be refused if they are "not necessary either for disposing fairly of the proceedings or for saving costs" (County Court Rules, Ord. 14, rr. 2 (2), 3 (6)).

(9) The wording makes it clear that the overriding consideration is fairness as between the parties in disposing of the proceedings to determine the civil rights and obligations of the parties (cf. article 6 (1) of the European Convention).

(10) Apart from situations to which public interest immunity is capable of applying, there is no question of balancing the interests of justice against other considerations of public policy (contrary to the view of the Court of Appeal in the present case). The primary question for the county court judge or the chairman of the industrial tribunal is whether or not discovery and inspection are necessary for the purposes enumerated in the procedural rules.

(11) The court or tribunal also has a discretion to refuse discovery or inspection in order to avoid oppression of the party concerned. However, (a) oppression should not be confused with the confidences of third parties to proceedings and (b) it has never been suggested that discovery or inspection should be refused in the present cases on the ground that it would be oppressive to either of the respondents: McGuinness v. Attorney-General of Victoria (1940) 63 C.L.R. 73, 102.

(12) As a matter of discretion it is also open to the court or tribunal to refuse discovery on the ground that the evidential value of the documents is wholly disproportionate to the burden which would be imposed on the party against whom discovery is sought. However, this ground has never been invoked by the respondents nor was it the basis on which the Court of Appeal decided either appeal.

(13) The problem of the effect of proceedings upon the confidence of third parties is not novel: Hopkinson v. Lord Burghley (1867) L.R. 2 Ch.App. 447. Indeed, it had been the tendency of the courts to extend the scope of discovery despite the effect upon the interests of third parties: the Norwich Pharmacal case [1974] A.C. 133 and McIvor v. Southern Health and Social Services Board [1978] 1 W.L.R. 757. It was therefore wrong of Lord Denning M.R. to suggest that the novelty of the Race Relations and Sex Discrimination Acts justified a new balancing exercise, which was done by the three members of the Court of Appeal.

(14) Where a genuine problem of confidentiality or privacy is alleged by a party to exist with respect to a particular document or class of documents, the party should make an application objecting to discovery and/or inspection stating his reasons for the objection. Such an application should normally be made before the hearing of the proceedings. Particulars should be given having regard to the nature and character of the particular documents: Pardy's Mozambique Syndicate Ltd. v. Alexander [1903] 1 Ch. 191; Ehrmann v. Ehrmann [1896] 2 Ch. 826; Riddick v. Thames Board Mills Ltd. [1977] Q.B. 881 and Distillers Co. (Biochemicals) Ltd. v. Times Newspapers Ltd . [1975] Q.B. 613.

(15) The court or tribunal should, if necessary, inspect the documents in question to decide whether discovery and/or inspection are necessary for fairly disposing of the proceedings.

(16) If the court or tribunal decides that there is a genuine confidentiality or privacy problem, it should make appropriate protective orders: in particular seeking specific undertakings as to the use of the documents and ordering the hearing to be in camera: see, as regards the power of the county court to sit in camera, Norman v. Mathews (1916) 85 L.J.K.B. 857. However, if it is necessary for fairly disposing of the proceedings that the document should be disclosed the fact that the disclosure would break the

confidence of a third party or invade his personal privacy would not justify a denial of discovery or inspection.

(17) The High Court has adequate power to punish the breach of an order made by the industrial tribunal, as just mentioned, as a contempt of court: Attorney-General v. British Broadcasting Corporation [1979] 3 W.L.R. 312.

(18) It is contrary to principle for there to be any presumption, still less immunity in respect of access to or use of classes of documents or individual documents on the ground that they are confidential or that their disclosure would be against the public interest, except in cases covered by public interest immunity.

(19) It would be contrary to principle for there to be any general obligation on a party seeking discovery and inspection to show that he had exhausted all other possible means of obtaining the information. McDonnell Douglas Corporation v. Green (1972) 411 U.S. 792, 800-804, indicates the scope of the inquiry and the shifting of the burden of proof in discrimination cases. See also Oxford's case [1977] I.C.R. 884 and Humphreys v. Board of Managers of St. George's Church of England (Aided) Primary School [1978] I.C.R. 546, 548-549. Considerations of oppression and probative value put limits to the licence to "fish."

(20) It would be contrary to the wording and aims of the relevant procedural rules and impracticable for there to be a presumption that the question whether confidential documents should be disclosed or inspected should be decided at the hearing rather than at the interlocutory stage.

(21) The Court of Appeal and the Employment Appeal Tribunal have rightly recognised in other cases that decisions of the Federal Courts of the United States are of persuasive value (a) because of the influence which United States legislation and case law have had upon Parliament in enacting the Race Relations and Sex Discrimination Acts, and (b) because of the great experience of the United States courts in dealing with problems of invidious discrimination. The approach of the United States courts to discovery and inspection in discrimination cases is not at all similar to the approach adopted by the Court of Appeal in deciding the present appeals: Carr v. Monroe Manufacturing Co. (1970) 431 F. 2d 384, 385, 387-390; Fears v. Burris Manufacturing Co. (1971) 436 F. 2d 1357; Burns v. Thiokol Chemical Corporation (1971) 483 F. 2d 300 and Georgia Power Co. v. Equal Employment Opportunity Commission (1969) 412 F. 2d 462.

(22) The observations of Lord Denning M.R. in the court below about the powers of the commissions, apparently made for the purpose of ascertaining public policy, were inaccurate and unfair.

At common law there are some situations in which it is unlawful to discriminate on arbitrary or capricious grounds: Nagle v. Feilden [1966] 2 Q.B. 633; Edwards v. Society of Graphical and Allied Trades [1971] Ch. 354; Constantine v. Imperial Hotels Ltd. [1944] K.B. 693 and Rothfield v. North British Railway Co., 1920 S.C. 805.

The Race Relations Act 1965 made discrimination in places of public resort illegal. Under the Race Relations Act 1968 civil proceedings might be brought by the Race Relations Board in respect of any act alleged to be unlawful by virtue of it. Section 24 dealt with privileged communications and is relevant to confidentiality. The Act made racial discrimination a

statutory tort. Proceedings could be brought only by the Race Relations Board. All proceedings were to be in the county court or the sheriff court. The general law of discovery in county courts applied, save as enacted in section 24.

Meanwhile by the Industrial Training Act 1964 industrial tribunals were created to determine appeals relating to assessments to the industrial training levy. Under section 51 of the Docks and Harbours Act 1966 these tribunals were to determine disputes as to the meaning of "dock work." Section 22 of the Industrial Relations Act 1971 created a right in an employee not to be unfairly dismissed. Proceedings relating to this right were to be before industrial tribunals. Section 55 related to the general duty of employers to disclose information for the purposes of all stages of collective bargaining. Section 57 related to disclosure of information to employees by major employers. Section 158 (1) dealt with immunity from disclosure of confidential information; it recognised the need to protect confidential information. But there is no similar provision for immunity in cases of unfair dismissal. The vast majority of cases before industrial tribunals are for unfair dismissal and involve comparison with the treatment of other persons. Section 149 dealt with proceedings under the Race Relations Act 1968 before industrial tribunals. Schedule 6 to the Act, containing provisions relating to industrial tribunals, enables, by paragraph 2 (a), regulations to be made for granting discovery on inspection. Pargraph 3 (1) sanctions regulations to enable tribunals to sit in private when the evidence is likely to consist of confidential information as specified in section 158.

The Trade Union and Labour Relations Act 1974 by section 1 repealed the Act of 1971 but re-enacted it in part subject to amendments. Part II of Schedule 1 to the Act relates to unfair dismissal and in such cases places the burden of proof on the employer. Part III of the Schedule by paragraph 16 (1) lays down the jurisdiction of industrial tribunals. Paragraph 21 (6) provides for fining any person who fails to comply with any requirement with respect to discovery on inspection imposed by virtue of regulations made as provided by paragraph 21 (2) (d). Paragraph 4 of the Industrial Tribunals (Labour Relations) Regulations 1974 gives power to require further particulars and grant discovery. Paragraph 6(1) provides for hearings in public unless a private hearing is appropriate to hear evidence which is likely to consist of (inter alia) information communicated to the person giving evidence in confidence or which he obtained in consequence of the confidence imposed in him by another person.

In the Act of 1974, as in the Act of 1971, Parliament had special regard to the disclosure of confidential information by employers in legal proceedings and prescribed limited protection by way of private hearings on a more limited basis in the Act of 1974 than in the Act of 1971. Discovery and inspection were allowed in industrial tribunals on a county court basis with special safeguards in regard to disclosure of the information obtained in consequence. Parliament in 1974 did not apply the immunities in section 158 (1) of the Act of 1971 to the disclosure of confidential information in proceedings before industrial tribunals. This was a matter, not of inadvertence but of deliberate policy. Section 17 of the Employment Protection Act 1975 imposes a general duty on employers to disclose

information to the representatives of an independent trade union in the course of collective bargaining. Section 18 confers immunities equivalent to those in section 158 of the Act of 1971. By contrast the Act of 1974 gave no equivalent immunity in proceedings covered by Part II of Schedule 1 to the Act of 1974.

The Employment Protection (Consolidation) Act 1978 confers a right not to be unfairly dismissed. There is also a right not to be discriminated against for trade union activities. The criterion for judging whether a policy of treating different people differently is reasonable or unreasonable was laid down in Cumings v. Birkenhead Corporation [1972] Ch. 12, pp. 37-38.

In section 61 of the Sex Discrimination Act 1975 and section 52 of the Race Relations Act 1976 restrictions on the disclosure of information are set out. Here Parliament had specifically addressed its collective mind to the problem of confidentiality and provided limited protection. These two sections are the counterparts of section 24 of the Race Relations Act 1968. The fact that in 1977 and 1978 cases of unfair dismissal vastly outnumbered those of sex discrimination or race discrimination indicates the scale of the problem. The scheme of the two Acts and the intentions of Parliament as to the use of relevant information emphasises their similarity.

Parliament's intention was to replace the Race Relations Act 1968 by the Act of 1976 so as to provide more effective methods of tackling racial discrimination. (1) It enabled the alleged victim to have more direct access to legal remedies. (2) It strengthened his position in proving discrimination, (a) by enabling the Commission for Racial Equality to help the individual by special forms of assistance; (b) by enabling alleged victims to question respondents as to the reasons for their actions and (c) by tackling the problem of discrimination by creating a commission with the strategic role of eliminating discrimination and producing equality of opportunity (i) by formal investigations; (ii) by a power to compel the production of relevant information and (iii) by a power to bring legal proceedings to prevent persistent discrimination. The intention of Parliament was not to promote social harmony but to provide legal remedies for a civil wrong.

In cases of discrimination and unfair dismissal the same principles should apply as far as possible to proceedings before industrial tribunals and in county courts, given the differences between them. It would be absurd if different principles applied to discovery in an employment case and in a case of housing by a local authority or the allocation of children to schools.

Regulation 5 of the Industrial Tribunals (Labour Relations) (Amendment) Regulations 1978 amends paragraph 4 of the Schedule to the Regulations of 1974.

It is proper and rational to ascertain the mischiefs for which Parliament was legislating since public policy is in the forefront of the submissions of both the appellants. Parliament had specific regard to the weaknesses in early legislation in the matter of obtaining information. The enforcement of the legislation was the vital function of the commission. Parliament regarded discrimination as a social evil and the obtaining of relevant information about it as fundamental.

Section 1 of the Act of 1976 defined "discrimination": see also section 4. Sections 10, 11, 31, 43 and 49 (4) show the wide range of situations which will be affected by the decision in the present case. Section 50 deals with the power to obtain information. Section 51 deals with recommendations by the commission. Section 53 restricts proceedings for breach of the Act. Section 57 deals with the enforcement of claims outside the field of employment.

Parliament was legislating within the general practice of the courts in interlocutory proceedings and applying it to this field. Industrial tribunals were the convenient courts to deal with these matters and their proceedings have been harmonised with those of the other courts as far as may be: see sections 58 to 63, 66. If inspection were not allowed at the start of the proceedings the commission would not be able to evaluate the chances of success until the last minute, in deciding whether to continue to assist a particular individual case. The longer it takes to disclose documents the longer it will take to find whether there is anything in a case.

Public policy considerations are relevant to public interest immunity and quasi immunity as developed in the courts. In exercising the discretion it is not right to have regard to the interests of third parties. When documents are relevant the only regard the court can have to the interests of third parties is to make protective orders in regard to their use. The discretion of the court is to grant or refuse discovery and inspection on the basis of the rule itself, i.e., on the basis of whether they are necessary for a fair hearing of the case. The existence of the interests of third parties in prescribing confidentiality is not relevant. The way the court can have regard to such confidentiality is by the exercise of its discretionary powers to seal up parts of the documents, to hear the case in private or to require undertakings that the contents of the documents shall not be revealed to others. The protection of privacy is legitimate but the overriding object is to do justice between the parties to the case. If there are confidences, the court should do its best to protect them but there is no question of balancing confidentiality against the needs of justice. On public policy the truth should always be accessible to the court. Only the strongest possible reasons can justify withholding relevant documents from a party to litigation and courts or tribunals.

By legislating against unfair dismissal in the field of employment Parliament has determined two matters of public policy: (a) There should be effective redress for the civil wrong of unfair discrimination. (b) Great harm would be done to industrial relations if invidious discrimination were perpetuated; equal opportunity is essential to good industrial relations. (c) It would harm industrial relations if complaints of unfair discrimination could not be effectively redressed. The application of the traditional principles of discovery and inspection promotes good industrial relations. It was not established that disclosure of the documents would cause industrial unrest. Reliance is placed on Riddick v. Thames Board Mills Ltd. [1977] Q.B. 881, 895, 901 and McIvor's case [1978] 1 W.L.R. 757, 760.

This appellant had a right of appeal to the Employment Appeal Tribunal. His complaint shows that he had unsuccessfully applied for a job opportunity for which he was qualified. It was up to the employers to

give an adequate non-discriminatory reason for rejecting his application. Almost all the relevant material is in the employers' possession and the tribunal should wish to examine all the evidence.

The principles on which the discretion to order discovery are illustrated in Senior v. Holdsworth, Ex parte Independent Television News Ltd. [1976] Q.B. 23.

Articles 1 and 6 (1) of the European Convention on Human Rights are relevant. As to the status of the convention in United Kingdom law it is submitted: (1) Since the rights and freedoms set forth in article 1 have not been incorporated by statute into United Kingdom law, they are not justiciable in the English courts: Malone v. Metropolitan Police Commissioner [1979] Ch. 344, 353C-D, 354D, 355C-D. (2) However, the House of Lords and the Court of Appeal have recognised the convention as a source of legal interpretation: Reg. v. Miah [1974] 1 W.L.R. 683, 694, and Broome v. Cassell & Co. Ltd. [1972] A.C. 1027, 1123. In Blathwayt v. Baron Cawley [1976] A.C. 397, 425H - 426A Lord Wilberforce referred to the convention and said that conventions of public policy should move with the times and widely accepted treaties might point the direction in which such conceptions, as applied in the courts, ought to move. In Reg. v. Lemon [1979] A.C. 617, 665D-F, Lord Scarman referred to articles 9 and 10 of the convention for the purpose of ascertaining contemporary legal policy as regards the law of blasphemous libel. In Reg. v. Wells Street Stipendiary Magistrate, Ex parte Deakin [1980] A.C. 477, 483, Lord Diplock referred to article 10 of the convention for the purpose of recommending a reform of the law of criminal libel so as to avoid the risk of a failure by the United Kingdom to comply with the international obligations imposed by the convention. In Ahmad v. Inner London Education Authority [1978] Q.B. 36, 41D, Lord Denning M.R. said that, though the convention was not part of English law, the courts would always have regard to it and do their best to conform their decisions to it, and Scarman L.J. said at p. 48D-E that, though the United Kingdom's treaty obligations did not become law until enacted by Parliament, the courts paid serious regard to them, interpreting statutory language and applying common law principles, whenever possible, so as to reach conclusions consistent with our international obligations.

As to the interpretation and application of article 6 (1): (1) In deciding whether or not a right is to be regarded as a "civil right" within article 6 (1) regard must be had to the substantive content and effect of the right under the domestic law of the state concerned: König Case (1977) 27 Publications of the European Court of Human Rights, para. 89.

(2) It is clear that, according to the criteria enunciated by that court in paragraphs 87-95 of their judgment, the appellants enjoy "civil rights," within article 6 (1) and under the Race Relations Act 1976 and the Sex Discrimination Act 1975.

(3) Article 6 reflects the fundamental principle of the rule of law: Sunday Times Case (1979) European Court of Human Rights (Text published by the Council of Europe at Strasbourg), para. 55. Moreover, the reference to "the interests of justice" in the last sentence of article 6 (1) indicates that the interests of justice are of paramount importance.

(4) The only exception to the scope of article 6 (1) is for hearings in private (inter alia) where the protection of the private life of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. The exceptions to the rights and freedoms of the convention must be narrowly interpreted: Sunday Times Case, para. 65.

(5) The concept of a "fair" hearing contemplated by article 6 (1) necessarily involves access by the parties to the litigation of all information, the disclosure and use of which are necessary for fairly determining the civil rights and obligations of the parties. It is conceded that this proposition may need to be qualified where public interest immunity applies in English law to protect a public right. In such a case the court will see the documents itself so as to ensure that, despite their immunity from disclosure to a party, his civil rights are fully determined. However, in the present case, since Leyland invoke no public right to which such immunity can apply, this qualification to the general scope of article 6 (1) is irrelevant.

(6) It would therefore be contrary to article 6 (1) in the circumstances of these appeals to deny or to restrict a party's access to or use of information for fairly determining the civil rights and obligations of the parties.

(7) Although the national courts must necessarily enjoy an area of discretion in determining the requirements of a fair hearing within the meaning of article 6 (1), the exercise of their discretion must be in accordance with the obligations imposed by article 6 (1): The Sunday Times Case, paras. 59-60.

(8) The aim of preserving confidences of third parties in the contents of documents or other information relevant to the determination of civil rights and obligations is outside the scope of article 6 (1) (cf. article 18).

(9) Alternatively, if such an aim may legitimately be pursued within the scope of application of article 6 (1) any restrictions imposed in the determination of the civil rights in question must be proportionate to that aim: Sunday Times Case, para. 62.

(10) The following restrictions upon the appellants' claims to their civil rights are outside the scope of and contrary to article 6 (1): (a) the public interest immunity contended for by Leyland Cars Ltd.; (b) the quasi-immunity enunciated and applied by Lord Denning M.R. in the present case [1979] Q.B. 144, 173A-G and accepted in substance by Browne L.J. at p. 183G-H; (c) the restriction upon discovery and inspection contended for by the Science Research Council.

(11) Alternatively, if (contrary to the appellant's primary submission) any of these restrictions are capable of being within the scope of article 6 (1) in the circumstances of these appeals, the nature and effect of such restrictions are disproportionate to the aim of preserving the confidences of third parties.

(12) As to the contention of Leyland Cars Ltd. that disclosure of confidential information would be likely to have an adverse effect on industrial relations: (i) As a matter of international law the courts of the United Kingdom are public authorities for whose actions and decisions the United Kingdom government are responsible: Sunday Times Case, paras. 43, 44, 45 and 67; (ii) The avoidance of possible industrial unrest at the expense of a fair hearing is not a legitimate aim within the scope of article 6 (1);

(iii) The United Kingdom government would be responsible in international law for any failure by the courts of the United Kingdom to maintain their authority (cf. article 10 (2) and the Sunday Times Case, para. 55) and to protect the right to a fair hearing guaranteed by article 6 (1); (iv) For the House of Lords to accede to the submission by Leyland Cars Ltd. that the appellants should be denied access to and use of information relevant to the determination of their civil rights so as to avoid possible industrial unrest would be contrary to article 6 (1).

The relevance of the convention is that it focuses attention on the need for a fair hearing being an overriding consideration. The right to privacy cannot be allowed to frustrate a fair hearing.

T. H. Bingham Q.C., P. L. Gibson and David Blunt for the first respondents. The questions of legal principle are as follows: (1) Are documents of this class which came into existence on an assurance of confidentiality such that there is an entitlement to withhold them from disclosure on the ground of public interest immunity? (2) If not, have the county courts and the industrial tribunals a discretion to monitor discovery so as to preserve confidentiality consistently with the doing of justice? (3) If so, should the industrial tribunal here exercise that discretion and what principles should govern that exercise?

Documents may be "relevant" to a case without being "necessary" to it. In any large action many documents are relevant but only very few of them are necessary. It is accepted that any which are necessary for fully developing a case must be produced, subject to such safeguards in respect of them as may be appropriate, e.g., by deletion of unnecessary confidential matter.

The fundamental divide in this case is whether the documents must be excluded, no matter what the effect on the interests of justice.

There should be no inspection unless a document is really necessary in the interests of justice. Automatic disclosure is opposed because it would result in the disclosure of many documents which were not necessary at all. There should be some such guidelines as counsel asked for in the Court of Appeal in this case [1979] Q.B. 144, 151. With these guidelines Browne L.J. expressed his agreement at p. 182.

This case comes down to two matters: (1) Should inspection be granted unless a case can be made against it and on whom is the onus? (2) What are the nature and extent of the proper safeguards and what is the proper timing for the application for inspection? Disclosure of documents in this case is unnecessary and would lead to abuse.

This appellant's case is thin to the point of emaciation. Annual confidential reports on her classified her performance as "very good" but stated that she was "not fitted for promotion" and that she had not "executive officer potential." There was no complaint of any discrimination against her on the part of those who made these judgments. In the reports there was no reference to her trade union activities, her sex or her married status. In the report of the local review board dated December 1, 1976, she appears to be rated as a good clerical officer but other employees are as good as her and some better. The local review board pick out those with a high potential. The question is not whether this appellant was as good as others, but whether she has been wrongfully held not to be as

good. In a letter to the director of the laboratory dated February 7, 1977, she said that she was convinced that her exclusion from promotion was attributable solely to her trade union activities. The reply from the director dated the same day stated that those activities did not influence the decision not to recommend her for promotion. On February 9, 1977, she wrote to the director that she was convinced that she was being victimised for her union activities. On February 11, 1977, the director replied referring to the annual confidential reports on all staff and saying that they could not be made available to individual members of the staff. Replying on February 17, 1980, the appellant said that those who composed the reports had admitted that they would not say what they did in them if they knew the staff would see them and she stated that this was an appalling reflection on the management style. In her originating application to the industrial tribunal this appellant repeated her conviction that she was not selected because of the aggressive way she carried out her trade union duties. In her evidence she said that the confidential reports were important to her because they were all the evidence she could produce and she had no case without them. Evidently she required production in the remote hope of dredging up something which would help her. Her belief that she had been discriminated against is not evidence of discrimination any more than belief that one is Napoleon is evidence that one actually is.

In the case of interrogatories in the High Court, before they are allowed, proceedings must be started and leave must be given for the particular interrogatories. "Fishing" for information is disallowed. To give a litigant the right to ask any questions he liked without leave being obtained regulating their form and scope would be to put in his hand a powerful and undesirable weapon. Under these Acts, however, there would be nothing to prevent this appellant from asking whether any and, if so, what reference to sex or marital state had been made in the reports. In this appellant's case there is nothing to suggest that her trade union activities played any major part in the records kept of her. It is acknowledged that an employer may be dishonest in the case he presents but, if there is anything suspicious in his case requiring explanation, that is usually clear. In the present case it is not necessary to order discovery so as to do justice.

In the procedure of industrial tribunals the time scale from originating process to decision is usually much shorter than in ordinary court proceedings. Often there is no letter before action. Under rule 3 (1) in the Schedule to the Industrial Tribunals (Labour Relations) Regulations 1974 a respondent must enter appearance within 14 days. Under rule 5 (1) the chairman of the tribunal is to fix a date for the hearing and notice of it is to be given to the parties not less than 14 days before that date. Often the hearing is 14 days after appearance. The time for preparation and investigation is very limited. There is no system of pleadings in the ordinary sense and no definition of issues. Under rule 4 (1) (a) a party may be ordered to furnish further particulars of the grounds on which he relies; this power is not much exercised. Before industrial tribunals there is no interlocutory stage as such as there is in the High Court or at the pre-trial stage in the county court. Directions to disclose are generally dealt with very informally. The county court rules governing representation do not apply to industrial tribunals and anyone can act for a party: a trade union official, a friend, a

husband or wife or even a disbarred barrister. Therefore there is no standard of reliability in regard to a person acting for a complainant.

In order to oblige a respondent to call evidence it is not necessary for the applicant to make out a prima facie case (see Oxford's case [1977] I.C.R. 884, 886-887) although it is other vise in a manifestly frivolous case. Industrial tribunals do not hold themselves bound by the strict rules of evidence applicable in ordinary civil cases and hearsay is admissible before them: Etherington v. Henry J. Greenham (1929) Ltd. (1969) 4 I.T.R. 226, 227, and Leighton v. Construction Industry Training Board [1978] I.C.R. 577, 580.

The parties do not, save in exceptional circumstances, recover full costs. This matter is linked with the matter of frivolous or vexatious cases and so such orders are rarely made. It is only in such cases that a discretion to award costs exists.

The contention that the documents here in question should be immune from disclosure on the ground of public interest privilege must fail because: (a) The common law proceeds in fields such as this by way of analogy and the privilege claimed is not analogous to any head of public interest privilege hitherto recognised. (b) Such a privilege could in some (even if only a few) cases have the effect of emasculating the Act by denying to a complainant the remedy which Parliament intended to confer. (c) While it is desirable that, because of the confidential nature of their contents, the documents should not be disclosed except when that is essential, the public interest in their being withheld from disclosure is insufficient to justify the creation of a new head of public interest privilege based, not on the contents of any individual document, but on the class to which the documents belong. There is no need to invent a new class of public interest immunity based, not on content, but on class.

At the other extreme the appellant in the present appeal contends that, in cases such as this, production and inspection of documents of the kind here in question, being relevant, should be ordered as of course in advance of the hearing in accordance with the normal procedure in actions in tort or contract. This also is unacceptable because: (a) It pays no regard to the legitimate interests of others in preserving the confidentiality of these documents. (b) It takes insufficient account of the discretion retained by the court to restrain and monitor disclosure when it concludes that more harm than good would result from compelling full disclosure or from compelling it at an early stage.

If there is no public interest immunity, the next question is whether the county courts and the industrial tribunals have a discretion to monitor the discovery of documents so as to preserve confidentiality.

The criterion of relevance is wide: see Compagnie Financière et Commerciale du Pacifique v. Peruvian Guano Co. (1882) 11 Q.B.D. 55, 62. The same principles apply to discovery as to the answering of oral questions: Lane v. Gray (1873) L.R. 16 Eq. 552, 553; Whitham v. Whitham (1884) 28 S.J. 456; Petre v. Sutherland (1887) 3 T.L.R. 275, 276; Alterskye v. Scott [1948] 1 All E.R. 469, 471; Warner-Lambert Co. v. Glaxo Laboratories Ltd. [1975] R.P.C. 354 and Attorney-General v. North Metropolitan Tramways Co. [1892] 3 Ch. 70; (1895) 72 L.T. 340, 341, 342.

The relevant rules relating to discovery and inspection are R.S.C., Ord. 24, rr. 2 (1) (5), 8, 11, 12. (In rule 2 (5) "necessary" is a strong word and does not simply mean desirable.) In the County Court Rules 1979, see in particular Ord. 14, rr. 2 (2), 3 (1) (2), 6, 8. See also the Industrial Tribunals (Labour Relations) Regulations 1974, Sch., r. 4.

The cases cited, in particular Alterskye's case [1948] 1 All E.R. 469 and Warner-Lambert's case [1975] R.P.C. 354, establish that when the court can identify an important interest which could be harmed by disclosure, this will not be ordered until it is made clear that this is necessary in the interests of justice. Confidentiality alone is not a ground for immunity but it represents an interest which the court can protect when, and to the extent, that the interests of justice do not require disclosure. That is so a fortiori when it appears that there is a public interest in the protection of the confidence. Confidentiality can be put into the scale, though in the end the necessity to do justice always prevails, in the absence of public interest immunity.

Where confidentiality and public interest coincide and where a confidential relationship exists and disclosure would be a breach of some ethical or social value involving public interest the court has a discretion to refuse disclosure if it believes that the public interest would be best served by the exclusion of the document. Though in the case of public interest the brake should be applied more readily, necessity for doing justice is still the overriding factor, save in extreme cases (such as, for example, national security). See Attorney-General v. Mulholland [1963] 2 Q.B. 477, 489, and D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171, 227, 243. Absolute privilege is not relied on. One is concerned with the discretion to refuse disclosure of a document unless the necessity for disclosure is clearly demonstrated. The exercise of such a discretion promotes candour. Thus if a person writing a personal report included some personal remarks the revelation of which would cause resentment, he would, if he found that it was to be disclosed, be more circumspect and less candid in future. Suppose that in the case of appointments to the Circuit Bench a woman barrister or a barrister of Asian origin, alleging discrimination, could demand disclosure of all the documents relating to all the persons appointed during the relevant period, an impossible situation would be created. There has never before been a demand for disclosure of confidential reports relating to third parties. It is idle to speculate whether Parliament foresaw what has occurred.

Under section 17 of the Employment Protection Act 1975 there is a general duty on employers to disclose information to trade union representatives. Section 18 places restrictions on that general duty. Though one cannot import the provisions of section 18 into the present case, it is relevant to note that under section 18 (1) (a) and (f) an employer is not required to disclose information the disclosure of which would be against national security or which had been obtained by the employer for the purpose of bringing legal proceedings. The inference to be drawn is that Parliament was content in the context of sections 53 to 55 to leave these matters to the ordinary County Court Rules, without the necessity for any special provisions. But section 18 (1) (c) indicates that Parliament recognised the undesirability of information confidential to employers being

disclosed. That the ordinary criteria prevail is indicated by section 50 (3) (a) of the Race Relations Act 1976 and section 59 (3) (a) of the Sex Discrimination Act 1975. Disclosure of confidential information to a commission is not so undesirable as disclosure to a fellow employee.

The American cases do not help the first appellant. McDonnell Douglas Corporation v. Green 411 U.S. 792, 802, 804, is in favour of employers. Carr v. Monroe Manufacturing Co. (1970) 431 F. 2d 300, 384, 388, 390, took account of the harm disclosure might do and indicated that it should not be automatic. Fears v. Burris Manufacturing Co., 436 F. 2d 1357, 1362, expressly followed that case. It was concerned with the conflict between Federal and State interests and it was held that there was no absolute privilege. See also Burns v. Thiokol Chemical Corporation (1973) 483 F. 2d 300, 305, 307. From the report of Georgia Power Co. v. Equal Employment Opportunity Commission, 412 F. 2d 462, it is not clear whether the documents in question were confidential. Nothing there affects the rights of third parties to confidentiality.

Assuming that there is a discretion to refuse disclosure the question arises: Should the industrial tribunals exercise it and what considerations should govern their decision? They should exercise their discretion if harm would flow from disclosure and if there is no clear need for it. Six considerations are material: (1) The onus is on the applicant under the rules to show that inspection of the document is necessary. But Mrs. Nassé had no reason to think that the documents she requires contain anything useful to her case. The Act was not intended to confer such rights on people who can put forward nothing but their bare assertions. It is contrary to the whole tradition of English legal proceedings to allow mere assertions to give a right of disclosure to defendants. Mrs. Nassé has no prima facie right to see the documents. It is not for the defendants to show that she has no such right. This Act was not meant to be a charter for any persons with an inflated notion of their own capacity to take their employers to court and get discovery of their documents. As a practical matter the applicant would have to show why the documents were really needed. This is a problem which concerns all employers who keep records like this.

(2) The Court of Appeal did not rule when the decision whether to direct disclosure should be made, beyond saying that it should not be at an early stage. It is not desired to pin applicants to any particular moment though the hearing is favoured as the proper time for the consideration of questions of discovery and the making of an order, if any. Special circumstances might justify an earlier consideration at the interlocutory stage. In these matters there is no stage like a summons for directions when the issues are defined. This matter should be left to be sorted out at the hearing. It is almost a year since the decision of the Court of Appeal, which the industrial tribunals have been applying and no difficulty has arisen: see British Railways Board v. Natarajan [1979] I.C.R. 326, 328-329, 332; Reading University v. MacCormack [1978] I.R.L.R. 490, 492, and also North British Railway Co. v. Garroway (1893) 20 R. 397.

(3) As to looking at documents, see Conway v. Rimmer [1968] A.C. 910, 953; there is no objection to the judge looking at them and, if he finds anything useful, he can put them in.

(4) The occasions when third parties would seek to be heard would be rare. A third party has no right to be heard but in practice as a matter of indulgence he would ordinarily be allowed to make representations.

(5) The introduction of safeguards should be approved, though they are not a substitute for insistence by the courts on the demonstration of a real need for inspection before inspection is ordered. Sealing up portions of a document is a safeguard, though it might arouse suspicion and it does not preserve the secrecy of the parts unsealed. It is important to preserve the secrecy of the others and sealing up is not a substitute for the rule for which the respondents contend. A hearing in camera keeps out the public and the press, but they do not represent the real danger, which is of one employee discovering the personal defects of another, and the reports which would result. The punishment for contempt in making disclosures contrary to the court's order is inadequate, since it would be hard to pin on anyone the responsibility for passing on such information.

(6) There are features of the industrial tribunals which do not correspond with the County Court Rules. There are grounds for approaching matters differently in the two courts.

In summary there is very little ground for criticising the rule laid down by the Court of Appeal as being unfair. It is correct in principle and sensible in practice.

Robert Alexander Q.C. and Michael Howard for the second respondents. In the Court of Appeal [1979] Q.B. 144, 167, Lord Denning M.R. set out the information which British Leyland had given to the applicant. At p. 173 he set out the importance in the public interest why confidential reports should not be disclosed and the proper concept for the preservation of confidentiality. See also Lawton L.J. at p. 177 and Browne L.J. at p. 181.

In some rare cases there may be a conflict between the public interest in confidentiality in this field and the production of documents necessary for the presentation of a case.

Information of this kind is protected by public interest privilege and there is a public interest element in this case. The documents which were the subject of the application for disclosure in the present case come within a class of documents protected from disclosure by public interest privilege. The matters which give rise to it are these: (1) Decisions to employ and promote are crucial to the whole of industry.

(2) It is essential that those responsible for decisions to employ and promote should have the fullest possible information at their disposal.

(3) It is essential that those who desire or are willing to provide this information, including employees themselves and persons outside the company who provide references, should feel uninhibited by fear of future disclosure to third parties.

(4) It is essential that employees should not be inhibited from applying for employment or promotion by fear of future disclosure of confidential information which they give when applying.

(5) It is essential that those who participate in the decision-making process should be able to express and record their views uninhibited by fear of future disclosure.

(6) Such fear would seriously affect the freedom and candour with

which providers of information and decision makers now approach their task.

(7) It is essential that those who participate in the decision-making process be encouraged to use and provide documentation in the course of such participation in order to foster (a) a systematic exercise of judgment; (b) the inclusion of all relevant factors in the exercise of judgment; (c) uniformity of criteria in the exercise of judgment; (d) the review of the process by higher management. Disclosure of such information would be likely to lead to the abandonment of its use and a consequent deterioration in the quality of decision making.

(8) Disclosure of information of this kind would be likely to have an adverse effect on industrial relations.

(9) Such disclosure would involve a breach of faith with those who in the past have provided confidential information which is now in the employers' files.

Categories of public interest are not closed: D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171. This is a new category and should be admitted. The question has not arisen before because the courts have not, prior to the anti-discrimination legislation, been found with a class of actions involving comparisons between one person and another in this way.

The fundamental interest to be protected in D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171 and Reg. v. Lewes Justices [1973] A.C. 388 was the free flow of information. The context in which the need to secure the free flow arises is of high public importance. The issue of whether the public interest is best served by the exclusion of evidence and refusal of discovery does not ultimately depend on whether the claimant is performing a public duty or exercising a statutory function. It is open to the House of Lords to hold that the discovery should be refused on the ground of public interest. Here the public interest requires such a refusal.

One of the purposes of this investigation is to establish whether there has been discrimination. It is not accepted that Parliament intended that anyone who thought he had been discriminated against should be able to go to the industrial tribunal to find out. It did not intend to encourage a mass of applications doomed to failure. If it be taken that Parliament intended to create a tort in respect of which the victim could go to the court it left in being the adversarial system of justice and did not create an inquisitorial system. The questionnaire under section 65 (1) (a) of the Act of 1976 was intended to remedy an imbalance and when someone had made a case with the help of it, the legislation enabled his claim to be determined.

Not all documents which are relevant are necessary. Discovery was intended to be directed to the matters in issue and not to those outside the scope of the litigation. It was not intended to be embarrassing to third parties. The burden of delivering documents is lessened by the ordinary requirement that they must be genuinely necessary to do justice between the parties.

In Rasul v. Commission for Racial Equality [1978] I.R.L.R. 203 the Employment Appeal Tribunal held that an applicant was entitled to discovery

of documents which would enable him to make a comparison of his own qualifications and those of his competitors. It has been accepted that in cases like the present there was no alternative between discovery and immunity. The Court of Appeal tried to tread between the test in Rasul and that which the present respondents proposed. It was strongly influenced by the considerations of confidentiality and public interest in this case.

The conflicting aspects of public interest referred to in British Railways Board v. Natarajan [1979] I.C.R. 326, 333, produces practical problems: (a) They may lead to different applications of the principle in practice. (b) They might lead to many cases being wrongly regarded as cases where discovery was necessary. (c) They lead to a measure of uncertainty. (d) The chairman's decision as to discovery must be taken when he has only a rudimentary knowledge of the case. (e) The difficulty is increased because he must reach his decision by looking at the document without argument as to its significance. (One would rarely find in a report on an employee an expression such as "dishonest but white.") (f) usually there would be no argument on behalf of third parties and they would rarely know whether the documents were to be disclosed. (g) The imposition of protective conditions does not really meet the point. (h) The problem may spill over into the evidence; questions may be asked in cross-examination which violate confidentiality.

The scheme laid down by the Court of Appeal in this case does not solve the problem. There is a different solution which protects employers and third parties in relation to confidential information. There is a public interest in protecting confidentiality. In this case there was evidence by a staff director that the disclosure of confidential information would have serious repercussions, inhibiting freedom and candour in reports, and if absolute confidentiality were not guaranteed the obtaining of information would be hindered; a breach of confidentiality would lead to industrial unrest. In general the employers of those appellants are not aware of the contents of the reports on their promotional prospects.

There is a clear public interest in the administration of justice which generally requires the disclosure of necessary documents. Such documents should only be excluded and oral evidence disallowed where there is another public interest of such importance as to call for that exclusion. An application to exclude relevant evidence will be jealously scrutinised: D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171, 223.

In summary: (1) There is a clear public interest in the open administration of justice which requires disclosure of things necessary fairly to dispose of a case; the search for truth should be unfettered. (2) Thus documents should only be withheld, and oral evidence disallowed where there is another public interest which is of such importance that it overrides the first public interest and calls for the exclusion of relevant evidence. (3) A claim to exclude relevant evidence will be jealously scrutinised. (4) The importance of confidentiality can be summarised thus: (a) The information for which public interest immunity is claimed will be confidential information obtained in the course of a confidential relationship. (b) Confidentiality is not a separate head of privilege but it may be material to bear it

in mind when privilege is claimed on the ground of public interest. It is accepted that confidentiality alone is not enough to found public interest in non-disclosure, but almost invariably when public interest is invoked the information sought to be withheld will have been communicated in confidence: see D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171, 245-246. What was said in Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1974] A.C. 405, 433-434, is adopted.

(5) Where there is both confidentiality and a public interest in non-disclosure of that information there must be a balancing against the other public interest: Conway v. Rimmer [1968] A.C. 910; Crompton's case [1974] A.C. 405; D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171, 231, 245-246, and Reg. v. Lewes Justices [1973] A.C. 388, 402C-D, 407A. There may be public interest in full disclosure necessary for the purposes of an action and a countervailing interest in non-disclosure on the ground of confidentiality. Even if, to get the right result in a case it would be necessary to disclose what the applicant is asking for, yet, if that was against the public interest, the matter must be at least weighed, and here there should be no disclosure, because of the public interest in confidentiality. In D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171, 232, the need for the police to receive a flow of information is linked as a matter of public interest with the public interest in confidentiality. It is not submitted that the public interest must always be linked with confidentiality, though it is hard to conceive a case where it is not.

(6) The categories of public interest have been extended in recent years, as recognised in D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171, and they are certainly not closed. New matters may be admitted in view of social conditions: Reg v. Lewes Justices [1973] A.C. 388, 407, 412.

(7) The principle is simply that a document is immune from disclosure whenever it is clearly contrary to the public interest for it to be disclosed, with the information it contains. Various limitations have been suggested on the area to which public interest can extend. In establishing public interest in the non-disclosure of a document there is no fixed boundary. It is not limited to governments or bodies discharging a public function: see Browne L.J. in the Court of Appeal in the present case [1979] Q.B. 144, 180.

(8) The common thread is ultimately that certain communications may have to be preserved confidentially either in the interests of national security or because otherwise the free flow of information which it is important for society should remain on a confidential basis would dry up or diminish, e.g., informers' reports of offences against children on legal and professional confidences.

(9) Confidentiality ceases if the author of the confidential information consents to disclosure but, even if he consents, it does not follow that the public interest ceases.

In the present case the protection of confidence may be a matter of public interest. Immunity does not arise only in the field of public law. These respondents are not assisting a private right in a new direction; they

take their stand in full on public interest. In whatever class of case the public interest in non-disclosure exists immunity arises. It is not only the Attorney-General who can assert public interest. Public interest can arise in relation to private rights.

Article 6 (1) of the European Convention on Human Rights adds nothing to what is already the law of England that there shall be a fair trial. A fair trial does not prevent the court from holding that in certain cases relevant evidence shall be excluded. Article 8 affirms the right of everyone "to respect for his private and family life."

There are disreputable employers who do not have such an objective system of recording the performance of their employees as these respondents do. All employers who have objective recording systems have the same problems. Non-disclosure of the records does not frustrate the objects of the Act. In many cases no comparison between employers arises. In cases where there is some basis for alleging that a civil wrong under the Act has been committed material will usually be available elsewhere. The records will rarely reveal a new point or be genuinely probative of the applicant's case. But the fact that an applicant might be precluded from making out a case is inherent in the nature of public interest immunity. The preservation of confidence covers this wide field even when the rare case occurs when disclosure would have probative value. Provision for hearings in private does not touch on discovery or on the public interest immunity in relation to the evidence. Regulations were not made with cases of systematic comparison of employees in mind. The provisions for the immunity of confidential information in relation to collective bargaining (sections 56 and 158 of the Industrial Relations Act 1971) do not help here. The ordinary rules of discovery apply but the crucial question is that of public interest. The power in the Acts to secure evidence in formal proceedings would not be impeded because in some cases the evidence might be obtained while preserving confidentiality, e.g., by blacking out confidential parts of the documents.

The scope of confidentiality covers confidential information provided in the course of, or for the purpose of, obtaining employment and relating to the personal details, capability or performance of an employee or prospective employee which may be relevant to a complaint under the Race Relations Act 1976. The field covers confidential communication in matters relating to employment or promotion in business or industry.

In weighing the factors of public interest involved the balance comes down on the side of exclusion of these documents. There a systematic invasion of confidence is sought. In industry companies with objective recording systems set great value on the certainty of the immunity of their reports. That certainty has great advantages. Only in a very few cases of discrimination would an applicant be adversely affected by that immunity. The general good of preserving confidence with certainty across the board must outweigh the few cases in which the information would be necessary for the fair trial of a claim. Very rarely would an employer with an objective recording system record in it anything which showed that he was ignoring the law.

Alternatively, the tribunal might look at the documents, consider how important they were to the hearing of the case and then balance that against

the public interest in confidentiality. Though there would be no certainty of protection that would prevent disclosure being ordered in cases where there was a real public interest in confidentiality. One would be considering the individual documents and not the class.

As to the United States cases reliance is placed on Carr's case, 431 F. 2d 384, 390, where it was recognised that in determining what should be disclosed, the public interest in non-disclosure is a factor to be considered. The court should weigh the public interest in confidentiality against the probative value of the document. That is reiterated in the Fears case, 436 F. 2d 1357, 1362.

What has already been disclosed is enough to secure a fair trial and no work is necessary: Lord Denning M.R. in the Court of Appeal [1979] Q.B. 144, 174. Bearing in mind what has been disclosed and the need to preserve the confidence of third parties no more is necessary.

If the House of Lords does not approve the balancing of public interests favoured by Lord Denning M.R. it can adopt the view of Lawton and Browne L.JJ. that the chairman should inspect each particular document to satisfy himself whether its disclosure is essential for doing justice between the parties, imposing such conditions as may be necessary for the protection of confidentiality.

As to the timing of the consideration of disclosure, if it is the law that documents should only be disclosed if they are really necessary for doing justice, that is a matter which it would be hard to judge before the hearing; that is the proper time to look at the documents. When there is an assertion that someone has been discriminated against, discovery of documents should not be automatic.

Kidwell Q.C. in reply. (1) The "ordinary" and universal principles for the disclosure and production of documents apply in discrimination cases, and these have been established for the past hundred years. (2) The Court of Appeal erred in principle in laying down its projected "guide lines." (3) Relevancy is the paramount consideration to which all other considerations must give way, unless they amount to public interest immunity. (4) "Necessary for fair disposal" detracts very little from the previous submission. A sight of relevant documents is normally necessary for fair disposal. (5) A claim to confidentiality alone has no weight. (6) Courts and tribunals have power to make special orders in exceptional cases to avoid "unnecessary" and "irrelevant" hurt. Hurt never outweighs the importance of full and frank disclosure.

As to Scottish law, the Industrial Tribunals (Labour Relations) (Scotland) Regulations 1974 are no different in this respect from the corresponding English regulations. See in particular regulation 4 in the Schedule. See also the Court of Session Practice C36 II, paragraph 95 (application for commission and diligence for recovery of documents), paragraphs 96-97 (enforcement) and paragraph 98 (confidentiality). No indication is given of the nature of the documents for which confidentiality may be claimed but they would include legal professional privilege. See also the Sheriff Courts (Scotland) Act 1907, Sch. 1, containing the rules of procedure, rules 47, 48, 59, 62, 68 and 76. Confidentiality in Scottish law is just another term for privilege and does not bear an extended significance. The situation is not different in England and Scotland; otherwise Lord Reid would have said so

in Conway v. Rimmer [1968] A.C. 910 and in other confidentiality cases.

It is accepted that Parliament intended the ordinary principles of discovery to apply and that the relevant consideration is whether disclosure and production are necessary for fairly disposing of the case: see Attorney-General v. Mulholland [1963] 2 Q.B. 477, 492 (Donovan L.J.). What is asserted here is a right to see the document. The rule applicable to this case is represented by Order 14, r. 2 (2) of the County Court Rules. There is no difference between the relevancy of a document and its necessity in the proceedings.

Any discretion must be exercised on judicial principles: see McIvor's case [1978] 1 W.L.R. 757, 762G. It must be exercised in the interests of justice. Predominantly the fair disposal of the matter must be considered. The court may order interrogatories to be substituted for discovery. Confidentiality has no weight when there is a conflict with the public interest of deciding a case fairly. Confidentiality in relation to the person giving the information has no weight in this context. Under rule 11 (2) (e) of the Industrial Tribunals (Labour Relations) Regulations 1974 a tribunal in regulating its procedure may strike out of any application anything which is scandalous, frivolous or vexatious.

Even when an applicant's case seems weak at first the tribunal should hear the evidence of both parties: see Oxford's case [1977] I.C.R. 884, 887. Here Mrs. Nassé had real grounds for suspecting that she might not be liked by her employers because of her trade union activities, but she cannot prove her own case without the comparative records. She knows that she has acted in a way which some people might consider a nuisance. Under sections 53-55 of the Employment Protection Act 1975 the only onus on this appellant is to show that she has not been promoted, and that is admitted.

Discrimination is promoting A rather than B, though B has greater merit, and doing so for one of the forbidden reasons. This will usually be a matter of inference. Discrimination essentially involves comparison. The comparative records are involved in every case and are essential to this appellant's case.

The lower court exercised its discretion in Mrs. Nassé's favour and the House of Lords should not interfere unless there was a misdirection by the industrial tribunal or it acted on the wrong lines. Here the discretion was exercised on the right lines.

Once a question of discovery has arisen the matter should not be left to the hearing. Discovery should be asked for in writing, the employer having the right to hold back documents if he contends that he is entitled to do so. There should be a general discovery, since only the employer himself knows what documents he has got. Ord. 14, r. 2, of the County Court Rules deals with discovery. In the county court one does not get discovery unless one asks for it. In the industrial tribunal one writes to request it and obtains an order, of which either party can thereafter complain. The employer, for example, may contend that it is too wide. There can be no inconvenience if a general order for discovery is made. In British Railways Board v. Natarajan [1979] I.C.R. 326, 332-333, the documents in question had no such direct and obvious relevance as they have here.

Lester Q.C. in reply. There are six possible different approaches to the

problem: (1) Public interest immunity for this class of documents with no balancing exercise, the second respondents' approach. (2) Public interest immunity for the contents of such documents involving a balancing exercise as in Conway v. Rimmer [1968] A.C. 910, the second respondents' alternative contention. (3) That, notwithstanding the absence of any public interest immunity, the court or tribunal is entitled to balance the interests of justice against the supposed public interest in possessing the confidence of third parties and the reporting systems of major employers, the Court of Appeal's approach by analogy with public interest immunity in the United Kingdom and the United States, but differing from the United States in the way in which the balance is struck; also the first respondents' approach and that of the second respondents in the last resort. (4) That restrictions should be imposed by the House of Lords on the normal principles as regards the exercise of discretion in ordinary discretion and inspection, to ensure that these orders are made only in the last resort and in very rare cases because of special features of the sex discrimination and race relations legislation, e.g., (i) the extent to which confidence would otherwise be broken; (ii) the existence of the potent weapon of the statutory questionnaire; (iii) the differences between industrial tribunals and county courts, the approach of the first respondents and the second respondents in the last resort. (5) That any document which is plainly relevant to an issue in the case will normally and by definition be necessary for disposing fairly of the proceedings and for saving costs, the first appellant's argument. (6) That although relevance is a necessary and is usually a sufficient condition for discovery and inspection, in a disputed case the test is whether disclosure is necessary; refusal on these grounds is the exception. The approach of the Employment Appeal Tribunal in Stone v. Charrington & Co. Ltd. (unreported), February 15, 1977, is right and it would be undesirable to lay down special guidelines for the interpretation and application of the test, the second respondent's argument.

As to the "balancing" approach, (1) (a) it is not open to Leyland to invoke public interest immunity because they are not seeking to protect any public right or interest but only to defend their own rights and interests against the second respondent's claim that he has been discriminated against on racial grounds; (b) the "public interest" on which Leyland rely is not a category to which public interest immunity should be extended.

(2) This leaves open the approach of the Court of Appeal and the first respondents, confidentiality through the back door, relying on D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171, 245, and by analogy the United States cases on public interest immunity. This balancing approach, in the circumstances of the present appeals, is without foundation; it proceeds by analogy with public interest immunity contrary to well-established principles; it is the "broad approach" which was expressly rejected in D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171 including Lord Edmund-Davies whose observations at p. 245 were clearly made in the context of a claim for public interest immunity (see pp. 242B-C, 242D - 246); it would be contrary to the concept of a fair hearing, which contemplates that everyone who is a party to civil proceedings shall have a reasonable opportunity of presenting his case to the court under conditions which do not place him at a

substantial disadvantage vis-à-vis his opponent, as recognised by the European Court of Human Rights and the European Commission of Human Rights and based on article 6 (1) of the European Convention on Human Rights; it would be capricious in its effect and likely to distort the fair determination of the matters in issue; and it would be contrary to the intention of Parliament.

(3) In substance the respondents' claim that the interests of employers in preserving the confidentiality of their assessment of employees and potential employees for job opportunities should be allowed to prevail over the new civil rights to equality of opportunity on merit except in those rare cases where written or oral statements made in confidence reveal discriminatory matters on their face. If that claim prevails effective enjoyment of these rights will be impaired despite the great public importance which Parliament gave to the attainment of equal opportunity on merit without unfair discrimination. These rights would also be impaired in the crucial field of employment opportunity.

(4) The mere fact that communications are confidential is not enough to establish a public interest to be weighed against the disclosure and use of relevant evidence; the respondents rely on the need to protect well-established internal reporting systems, to ensure conduct and the free flow of information.

The general position as regards confidentiality is summarised in McGuinness v. Attorney-General of Victoria, 63 C.L.R. 73. The claim to preserve candour was expressly rejected in Conway v. Rimmer [1968] A.C. 910, 940-941, 948, 954, 957, 972, 974-975, 985-986, 988-989, 994, 995, 996. The position is a fortiori where no public interest immunity is involved because the documents do not relate to the efficient working of the public service or the effective performance of any public operations. The United States courts have expressly addressed themselves to the problem in the context of discrimination cases where public interest immunity has been invoked against disclosure. Carr's case, 431 F. 2d 384, 388, was not decided solely on the basis that a State immunity had been invoked. It was followed in the Fears case, 436 F. 2d 1357. Both cases establish that in cases involving public interest immunity and allegations of discrimination the balance should be struck in favour of disclosure. This is contrary to the Court of Appeal's approach in the present case which did not even involve public interest immunity and Browne L.J. was wrong in stating that its approach was similar to that of the United States Federal Courts. The relevant records in the Georgia case, 412 F. 2d 462, 465, 468, were confidential and involved testing and employment information in regard to all employees at the employers' plant, but the court upheld their discovery.

The appellants' "broad approach" to D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171 was expressly rejected in the House of Lords; see pp. 219-220, 224-225, 235, 237-240, 242, 243-246, and should not now be accepted.

The balancing approach is unfair and impracticable. (a) It cannot logically be confined to written statements communicated in confidence but would apply to oral comments. (b) It cannot logically be confined to major employers with established reporting procedures. The principle would apply to all communications made in confidence by employees about other

employees or by interviewers. (c) It creates uncertainty as to the circumstances in which confidences will be broken. (d) It requires tribunal chairmen to take decisions in the absence of a clear definition of the issues and with only a rudimentary knowledge of the case. (e) It is likely to create unfairness at the hearing where the applicant is normally not legally represented. He would have to present his case in conditions which placed him at a substantial disadvantage vis-à-vis his opponent. (f) It would be likely to result in the pursuit of litigation which would otherwise be settled or discontinued. (g) It is likely to result in continuing (if unfounded) suspicions of unjust discrimination. (10) It would enable the respondents to pick and choose in the disclosure of confidential documents as it suited their case.

In Commission for Racial Equality v. British Broadcasting Corporation (unreported), November 17, 1977, before Judge Ruttle in the Westminster County Court, a case of a black engineering porter who believed he had been discriminated against in that he was not one of the candidates selected for promotion to chargehand, the proceedings were under section 3 of the Race Relations Act 1968. The B.B.C. disclosed all confidential reports on the complainant, the successful and unsuccessful candidates and the three members of the promotion board. The documents were relevant and it was not suggested that their disclosure was against the public interest.

As to the proposed restrictions on the exercise of the discretion in relation to discovery and inspection of confidential documents, it is for the party resisting discovery or inspection to satisfy the court or tribunal that it must not make the order. To make an order here would not be oppressive nor is the evidential value of the documents disproportionate to the burden on the respondents. It is not necessary for the House of Lords to enunciate general principles on this topic. The discretion should be exercised in the light of the circumstances in each case. There is no presumption against disclosure to protect the confidences of third parties nor is third-party confidentiality relevant to the exercise of the discretion in deciding whether discovery or inspection is necessary for fairly disposing of the proceedings. No presumption against the disclosure of relevant documents of probative value is created by the fact that other means of proof may be available. The statutory questionnaire was designed to be used in addition to discovery and inspection and is not a substitute for them.

McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-803, did not concern the disclosure of confidential information. It indicated that an alleged victim of discrimination should have a fair chance to show that the stated reason for treating him less favourably was a pretext.

Discovery and inspection should not be more restricted in industrial tribunals than county courts. Industrial tribunals can extend time. There may be proper pleadings in their cases. There may be an interlocutory hearing. Discovery and inspection are to be on the same basis as in the county courts. It was not intended that applicant's rights should be diminished because jurisdiction in employment cases was transferred to industrial tribunals. Different principles do not apply in the county courts and the industrial tribunals.

The House of Lords could only accede to the respondents' arguments by enunciating novel principles which would overrule well-established

authorities, contradict the aims of the legislation and stultify claimants' chances of proving discrimination. The normal practice relating to discovery and inspection should apply.

Their Lordships took time for consideration.

Nov. 1.LORD WILBERFORCE. My Lords, Mrs. Nassé and Mr. Vyas, who are the two appellants in these conjoined appeals, have complained to industrial tribunals of discrimination against them by their employers

Mrs. Nassé was employed as a clerical officer by the Science Research Council ("S.R.C."), a body incorporated by royal charter. She sought, unsuccessfully, promotion to the grade of executive officer and complained, originally, that she had been discriminated against on the ground of her activities in her trade union. Later she added a complaint of discrimination under the Sex Discrimination Act 1975.

Mr. Vyas was employed as a methods analyst by Leyland Cars (B.L. Cars Ltd.) - "Leyland." He sought, unsuccessfully, a level transfer to another division in the company, and complained of discrimination on racial grounds: he is of Asian origin.

Each appeal raises the question whether and to what extent a complainant under the Employment Protection Act 1975, or the Sex Discrimination Act 1975 or the Race Relations Act 1976, may obtain discovery and inspection of documents, and in particular, whether she or he is entitled to see confidential assessments, references, reports or other documents relating to the complainant and to other persons, particularly those persons who have been preferred to the complainant. In each case the employer has been willing to produce for inspection a certain amount of material. But in each case it objects to the disclosure of matters revealed in confidence on the ground, broadly, that this would involve a breach of the confidence under which the material came into existence, and would undermine the whole system and structure of promotion and employer management.

The appeals call for a decision on principle applicable generally to complaints of discrimination, but in the end these particular cases have to be decided, so I think it advisable to say something more about them before attempting generalisations. Mrs. Nassé, as other employees of the S.R.C., had made on her an annual confidential report. This form of report, commonly used in the public service, is made by the employee's immediate superior, by an officer senior to the reporting officer, and by the next senior officer to the latter. These reports to some extent involve an assessment of personal qualities and are confidential in the sense that those signing them know that they will not be shown to the person reported on. They are also confidential in the sense that the person reported on knows that the contents of the report will only be used or disclosed for the purpose of monitoring his performance. However, the person reported on may ask to be told of some of the information given in the report.

The reports on Mrs. Nassé, in accordance with the usual procedure, were considered by a local review board together with reports on other employees. The local review board made notes from the reports and then made recommendations to the director of the laboratory where she was employed as to clerical officers to be put forward for promotion.

After endorsement by the director, the recommendations were forwarded to a central review board. Mrs. Nassé was not recommended for promotion: the only officer who was recommended in 1976 was a Mr. Roberts. The central review board decided to call for interview Mr. Roberts and a Miss Richardson, but not Mrs. Nassé. Ultimately Mr. Roberts and Miss Richardson were promoted.

The documents which Mrs. Nassé, by letter to the industrial tribunal, requested should be supplied to her were (a) the annual confidential reports on Mr. Roberts, Miss Richardson and herself for 1975-6 (later extended in the case of Mr. Roberts to 1974) and the minutes of the local review board. The S.R.C. furnished her with copies of the report on herself but refused her other requests. After a hearing on November 23, 1977, the industrial tribunal granted Mrs. Nassé's application and this decision (with a small variation) was upheld by the Employment Appeal Tribunal on May 19, 1979. On appeal by the S.R.C. to the Court of Appeal, that court allowed the appeal and refused Mrs. Nassé's application.

Mr. Vyas applied in October 1977 for a level transfer to a position in respect of which his employer had advertised two vacancies. Three other persons applied for the vacancies and they, together with Mr. Vyas, were interviewed. Mr. Vyas was unsuccessful. After he had made his complaint to an industrial tribunal an application was made inter alia for an order requiring the employer to disclose details of the employment records of the other persons interviewed, their service records, personal history forms, personal assessment records and details of commendations, if any, together with their application forms for the post advertised. He also asked for disclosure of the completed interview report forms returned by each member of the interview panel in relation to each person interviewed. Certain other information requested was supplied to the complainant, but the employer objected to disclosing the matters referred to. As to the latter the chairman of the industrial tribunal refused the application, but it was allowed on appeal by the Employment Appeal Tribunal, with an indication that in doing so the tribunal felt constrained to follow the decision in Mrs. Nassé's case. On appeal to the Court of Appeal, an affidavit was admitted at a late stage from the employer's staff director stating that disclosure of such documents would lead to an inhibition of freedom and candour in reporting and an inhibition on the part of employees when applying for jobs or promotion. It was further stated that such disclosure would constitute a breach of faith which would be likely to lead to industrial unrest and diminution of the effectiveness of selection procedures. The Court of Appeal allowed the employer's appeal.

On the appeals coming before your Lordships very extensive arguments were heard ranging widely over many areas of substantive and procedural law, with references to American cases under the Civil Rights Act 1964 and to the European Convention of Human Rights, article 6. Since I regard our task in this House to be at most to establish rules which can be applied by industrial tribunals (and analogously by county courts in discrimination cases), I shall summarise the statutory background

ground and then state the conclusions to which I have come before developing certain supporting arguments.

There are three statutes dealing with discrimination: in these appeals we are concerned with all of them. I shall refer only to such provisions as are essentially relevant. The Employment Protection Act 1975 sections 53ff. deals with action taken against an employee for the purpose of penalising him for being a member of an independent trade union, or of preventing or deterring him from taking part in the activities of an independent trade union. Complaints go to an industrial tribunal where the employer has the burden of showing that the purpose for which the action was taken was not such as had been mentioned (see section 55 (1) (b)). Complaints of discrimination in employment under the Sex Discrimination Act 1975 or the Race Relations Act 1976 also go to an industrial tribunal, but in these cases the burden of proof is on the employee. Discrimination in other matters (e.g. as to education or housing) go to a county court and are to be dealt with "as any other claim in tort" (see sections 66 (1) and 57 (1) of these Acts respectively).

In cases under the Sex Discrimination Act and the Race Relations Act the necessary information and material to support or refute a claim will rarely be in the possession of the employee, but, on the contrary, is likely to be in the possession of the employer. Discrimination, at least in promotion cases, involves an allegation that, although the unselected complainant is as well qualified as the person selected, or indeed better qualified, he was not chosen, an allegation which almost necessarily involves a careful comparison of qualifications and an inquiry into the selection process. The employer is likely to have information on these matters. So, in order to ensure its production, each of the Acts contains a powerful inquisitorial procedure enabling the statutory commissions set up under each Act to obtain information. They may conduct a "formal investigation" and in the course of it require any person to give oral information and produce documents; there is however the limitation that a person cannot be required to give information, or produce documents, which he could not be compelled to give in evidence or produce in civil proceedings before the High Court. If an individual considers that he may have been discriminated against, the relevant commission may assist him (by advice or "legal aid") and may help him to question the employer by means of a questionnaire. If the employer refuses to answer, or if his answer appears evasive or equivocal, inferences adverse to him may be drawn. Furthermore, industrial tribunals have powers - of their own motion - to ask for particulars of the grounds on which a person relies and of any facts or contentions relevant thereto. These provisions may appear draconian - they did so to some extent to Lord Denning M.R. - but for my part I do not find it necessary to characterise them. The powers have been conferred by Parliament upon statutory bodies as part of the machinery for eliminating discrimination in situations where the parties are of unequal strength: no instance was given to us of an oppressive use of them and we should presume that they will be reasonably used for the purpose for which they were given. The relevant point to be made is that, by reason of these powers, employees and the

tribunals have the means, before any question of discovery arises, to obtain a great deal of information which may assist the employees' case, and indeed by conferring them Parliament has shown that its policy is that they should have every chance to lay before the tribunal or the court all material that may be relevant to a discrimination claim.

That brings me to the question of discovery (in which I include inspection) as to which the situation, as I see it, is formally simple. By a number of cross references between regulations, the Industrial Tribunals (Labour Relations) Regulations 1974, the County Court Rules and the Rules of the Supreme Court the position is reached that the tribunal, or the county court, has a general discretion to order discovery, coupled with the qualification that "discovery shall notbe ordered if and so far as the court is of the opinion that it is not necessary either for disposing fairly of the proceedings or for saving costs" (County Court Rules, Ord. 14, r. 2 (2)). These provisions, applied as they have been since their introduction, are sufficient to provide a solution for the issues in these appeals. These are, broadly, two: First, is there in relation to confidential documents, or any relevant class of confidential documents, any immunity from disclosure? Second, if not, how should the tribunal exercise its discretion as to discovery in relation to confidential documents in this field? (Here and elsewhere I use the word "tribunal" so as to include, where appropriate, a county court.)

On these points my conclusions are as follows:

1. There is no principle of public interest immunity, as that expression was developed from Conway v. Rimmer [1968] A.C. 910, protecting such confidential documents as those with which these appeals are concerned. That such an immunity exists, or ought to be declared by this House to exist, was the main contention of Leyland. It was not argued for by the S.R.C.; indeed that body argued against it.

2. There is no principle in English law by which documents are protected from discovery by reason of confidentiality alone. But there is no reason why, in the exercise of its discretion to order discovery, the tribunal should not have regard to the fact that documents are confidential, and that to order disclosure would involve a breach of confidence. In the employment field, the tribunal may have regard to the sensitivity of particular types of confidential information, to the extent to which the interests of third parties (including their employees on whom confidential reports have been made, as well as persons reporting) may be affected by disclosure, to the interest which both employees and employers may have in preserving the confidentiality of personal reports, and to any wider interest which may be seen to exist in preserving the confidentiality of systems of personal assessments.

3. As a corollary to the above, it should be added that relevance alone, though a necessary ingredient, does not provide an automatic sufficient test for ordering discovery. The tribunal always has a discretion. That relevance alone is enough was, in my belief, the position ultimately taken by counsel for Mrs. Nassé thus entitling the complainant to discovery subject only to protective measures (sealing up, etc.). This I am unable to accept.

4. The ultimate test in discrimination (as in other) proceedings is whether discovery is necessary for disposing fairly of the proceedings. If it is, then discovery must be ordered notwithstanding confidentiality. But where the court is impressed with the need to preserve confidentiality in a particular case, it will consider carefully whether the necessary information has been or can be obtained by other means, not involving a breach of confidence.

5. In order to reach a conclusion whether discovery is necessary notwithstanding confidentiality the tribunal should inspect the documents. It will naturally consider whether justice can be done by special measures such as "covering up" substituting anonymous references for specific names, or, in rare cases, hearing in camera.

6. The procedure by which this process is to be carried out is one for tribunals to work out in a manner which will avoid delay and unnecessary applications. I shall not say more on this aspect of the matter than that the decisions of the Employment Appeal Tribunal in Stone v. Charrington & Co. Ltd. (unreported), February 15, 1977, per Phillips J., Oxford v. Department of Health and Social Security [1977] I.C.R. 884, 887, perPhillips J. and British Railways Board v. Natarajan [1979] I.C.R. 326 per Arnold J. well indicate the lines of a satisfactory procedure, which must of course be flexible.

7. The above conclusions are essentially in agreement with those of the Court of Appeal. I venture to think however that the formula suggested, namely [1979] Q.B. 144, 173, 182:

"The industrial tribunals should not order or permit the disclosure of reports or references that have been given and received in confidence except in the very rare cases where, after inspection of a particular document, the chairman decides that it is essential in the interests of justice that the confidence should be overridden: and then only subject to such conditions as to the divulging of it as he shall think fit to impose - both for the protection of the maker of the document and the subject of it."

may be rather too rigid. For myself I prefer to rest such rule as can be stated upon the discretion of the court.

To these conclusions I will now add some supporting arguments. I make these briefly since a large part of the ground is familiar, and to deal fully with all the contentions we have heard would require treatment disproportionate to the case. In the end the issue between the parties, apart from the claim to public interest immunity, is a narrow one.

1. I reject the contention of public interest immunity basically on three grounds. First there is no acceptable analogy, still less any precedent, on which such a claim could be admitted. The area in which the immunity is claimed is essentially one of private right even though interests beyond those of the particular employer concerned may be involved. Secondly, to admit such a claim in this field would conflict with the clear public interest accepted and emphasised by Parliament in the Sex Discrimination Act 1975 and the Race Relations Act 1976 that the fullest information should be before the tribunals. Thirdly, to admit such a claim would produce most undesirable results in excluding classes of

documents altogether from use in the proceedings, since documents covered by immunity on grounds of public interest not only may but must be withheld.

2. No authority is needed for the negative proposition that confidentiality alone is no ground for protection: see however Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1974] A.C. 405. English law as to discovery is extremely far reaching: parties can be compelled to produce their private diaries; confidences, except between lawyer and client, may have to be broken however intimate they may be. But there are many examples of cases where the courts have recognised that confidences, particularly those of third persons, ought, if possible, in the interests of justice, to be respected: see, for recent examples, Attorney-General v. Mulholland [1963] 2 Q.B. 477, Attorney-General v. Clough [1963] 1 Q.B. 733 and compare Attorney-General v. North Metropolitan Tramways Co. [1892] 3 Ch. 70. This principle was accepted by this House in D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171. Employment cases, and indeed all cases involving selection, involve a wide dimension of confidentiality, affecting other candidates or applicants, who may be numerous, and a number of reporting officers and selection bodies. No court attempting to administer these Acts can fail to give weight to this, though it is not, as above stated, the only element. It is sometimes said that in taking this element into account, the court has to perform a balancing process. The metaphor is one well worn in the law, but I doubt if it is more than a rough metaphor. Balancing can only take place between commensurables. But here the process is to consider fairly the strength and value of the interest in preserving confidentiality and the damage which may be caused by breaking it; then to consider whether the objective - to dispose fairly of the case - can be achieved without doing so, and only in a last resort to order discovery, subject if need be to protective measures. This is a more complex process than merely using the scales: it is an exercise in judicial judgment.

3. It was justly pointed out by Mr. Lester Q.C., for Mr. Vyas, also representing the two commissions, that Parliament in enacting the two discrimination Acts, and also in the field of employment protection, undoubtedly had in mind that considerations of confidentiality might arise, and indeed legislated as to this matter. Thus, in the Industrial Relations Act 1971, while employers were obliged to disclose certain information to employees, or to trade union representatives (sections 56, 57) there was a specific provision relieving employers of their obligation as regards "information which has been communicated to the employer in confidence, or which the employer has otherwise obtained in consequence of the confidence reposed in him by another person" (section 158 (1)). That same Act contained provisions regarding discovery in industrial tribunals similar to those which apply in the present cases (Schedule 6, paragraph 2 (d)) without any reference to confidential matters. On the repeal of the Industrial Relations Act 1971 these provisions were carried forward into the Trade Union and Labour Relations Act 1974 which extended the powers of industrial tribunals (Schedule 1, Part III, paragraph (6))

with a similar reference to confidential matters as had been made in section 158 above (Schedule 1, Part III, paragraph 21 (5)) - power being given to sit in private to protect confidentiality. So the policy of this Act was to allow discovery and inspection in industrial tribunals on the same basis as would be allowed in county courts with specified safeguards for confidentiality. The Employment Protection Act 1975 contained similar provisions regarding disclosure and confidential information to those contained in the (repealed) Industrial Relations Act 1971, sections 56 and 158, but gave no immunity as regards such information in proceedings in industrial tribunals under Part II of that Act. These repeated enactments show, it was said, a deliberate abstention by Parliament from introducing any immunity or confidential information into proceedings before industrial tribunals, although Parliament had to hand the necessary language for so doing. My Lords, I recognise the force of all this but I do not think that it leads to the conclusion which it is sought to draw from it. The fact that Parliament has conferred a specific degree of immunity upon confidential information required to be disclosed in particular circumstances is not inconsistent with a legislative intention that industrial tribunals should have the same power, in their discretion, to refuse or limit discovery where confidential information is concerned. This power is not one to confer immunity: it is simply the ordinary discretionary power which is enjoyed by the High Court and by county courts. By equating the powers of tribunals to those of the courts, Parliament has, in my opinion, indicated in a clear enough way that those limitations upon the granting of discovery which the courts have long accepted should apply to tribunals, and the granting of the much wider immunity in other cases does not, in my understanding, negate this.

4. The European Convention on Human Rights. The point here is a very short one. Article 6 (1) of the convention guarantees the right to a fair hearing: the appellant (Vyas) relies on this as requiring total disclosure of all information relevant to the case, confidential or not. But this is a fallacy, because the whole aim and object of those carefully worked out provisions of English law which regulate the right to discovery and inspection of documents is precisely to achieve a fair hearing. That is the standard of our law and it is unnecessary to have resort to the convention to establish it.

It remains to dispose of the actual appeals. In Mrs. Nassé's case, discovery was sought of a whole range of documents as specified above, claimed by the employer to be confidential. The chairman of the industrial tribunal ordered accordingly without inspecting the documents. The Court of Appeal held that this was wrong and that discovery should only be ordered, if, after inspection, the tribunal considered discovery to be necessary in order to dispose fairly of the proceeding. In my opinion, the Court of Appeal was right, and the appeal must be dismissed. This does not prevent Mrs. Nassé, if she goes on with her case, from requesting the tribunal to look at the requested documents and ordering, subject if necessary to safeguards, discovery and inspection of such of them as are necessary for fair disposal of the case. In Mr. Vyas's case the situation is similar. The Employment Appeal Tribunal ordered that he should be allowed to inspect all the documents to which I have

referred (as listed in a letter dated February 15, 1978) regardless of confidentiality. The Court of Appeal held that this was wrong and I agree with them. The order of the Employment Appeal Tribunal was correctly set aside, and the appeal must be dismissed. However some of the documents may well be necessary for disposing fairly of the case. If it goes on, the industrial tribunal should consider, at the time and in the manner which it considers most suitable, which, if any, of the requested documents should be disclosed and produced in order to enable the proceedings to be fairly disposed of.

I would dismiss the appeals and order each appellant to pay the respective respondent's costs in this House.

LORD SALMON. My Lords, my noble and learned friend, Lord Wilberforce, has lucidly stated all the material facts, the relevant provisions of the three statutes and the rules and orders with which these two appeals are concerned. I will not repeat but gratefully adopt them.

The question which these appeals raises is of great importance:

"What rights has an employee, complaining of unlawful discrimination, to obtain an order against his employer for the production of documents which contain confidential information."

"Complainants" include all who complain of and seek redress for unlawful discrimination on account of their sex, race or trade union activities. Such discrimination is treated as a tort in England and as a breach of statutory duty in Scotland.

It is plain from the Industrial Tribunals (Labour Relations) Regulations 1974 that Parliament did not intend to deprive the person against whom such discrimination is alleged to have been committed of any of the facilities enjoyed by the ordinary plaintiff suing for damages for tort. One of the most useful of these facilities is the right in certain circumstances to obtain an order for discovery and inspection of documents. This right is of particular importance in cases of alleged discrimination such as the present for it is the employer alone who will ordinarily be in possession of the documents likely to throw light upon the question as to whether or not the employer has unlawfully discriminated against the complainant. I do not think that the importance to the complainant of his right to claim an order for inspection of the relevant documents is diminished by the statutory machinery which exists to allow the complainant and indeed the industrial tribunal to question the employer and at an early stage to obtain answers relating to whether the employer has unlawfully discriminated against his employee. It is, no doubt, possible that the answers, if reliable, might establish or negative the alleged unlawful discrimination and therefore make inspection of any documents unnecessary. On the other hand, there is the danger that the answers may be exiguous or unreliable and misleading. The only way of testing the accuracy of the employer's answers may often be by comparing them with the reports and records in their possession. The statutory machinery for obtaining early information from the employers was not, in my view, intended to be a substitute for, but an addition to, the complainant's rights to discovery and inspection of documents.

It is plain from the facts of the present case that there is, particularly in large enterprises, an elaborate system for making and filing written reports and records in relation to each employee, and that these reports are of special importance when it comes to decide which of the employees applying for promotion or transfer shall be interviewed by the panel which selects the applicants for promotion or transfer. Suppose that one of the candidates who happened to be black had excellent written records and reports but failed to obtain the promotion or transfer for which he had applied, whilst two other candidates who happened to be white did obtain promotion or transfer although their records and reports were far below those of the black man; this could well be regarded as establishing, at any rate, a strong prima facie case of race discrimination. But without discovery and inspection of the relevant documents, the truth could not have been found nor justice done.

The argument advanced with great skill and relied upon almost exclusively by British Leyland was that the following documents which Mr. Vyas required to be produced enjoyed public interest immunity:

"3. Details of the employment record of the persons mentioned in (1) and (2) above; their service records whilst in the employment of the respondents, i.e. length of service, positions held, promotions, job classification according to grades, personal history forms, personal assessment records and details of commendations (if any) etc. together with their application forms for the post advertised, and applied for by the applicant."

"6. The completed interview report forms returned by each and every member of the interview panel in relation to every person, including the applicant, interviewed for the afore-mentioned post in the services division of the respondents."

I cannot agree that the production of such documents could have the dire effect which has been suggested, and of which there is certainly no real evidence.

I cannot accept the proposition that those whose duty it was to write reports about a candidate and his record, suitability for promotion, etc., would lack in candour because the reports, or some of them, might possibly sometimes see the light of day. This proposition bears a striking resemblance to that which was accepted as sound for upwards of twenty years after the obiter dicta pronounced by Viscount Simon L.C. in Duncan v. Cammell, Laird & Co. Ltd. [1942] A.C. 624. This proposition was however held to be unsound in In re Grosvenor Hotel, London (No. 2) [1965] Ch. 1210, and generally accepted as unsound during the three years following that decision. The obiter dicta in Duncan v. Cammell, Laird & Co. Ltd. was then temporarily revivified by a majority decision in Conway v. Rimmer [1967] 1 W.L.R. 1031 but was finally put to rest when that majority decision was reversed in your Lordships' House [1968] A.C. 910.

No more than I accept the proposition relating to candour, do I accept the proposition that employees anxious for promotion or transfer would be inhibited from making the necessary applications if they knew that their application forms and the written decisions relating to them might also sometimes be allowed to see the light of day.

I do not consider that an order to produce for the employees' inspection such documents as those to which I have referred could be contrary to public interest; nor do any such documents bear any resemblance to the kind of documents which are normally accepted as immune from production in the public interest. I therefore consider that the main argument relied on by British Leyland (but rejected by the Science Research Council in the second appeal) must fail. The next question that arises is whether and to what extent the fact that the documents concerned are considered to be confidential affects the complainant's right to discovery and inspection. In most cases, whether before the High Court, the county court or an industrial tribunal, there has been discovery of documents with no claim to privilege or immunity from production; and the documents are normally produced for inspection as a matter of course. This however does not always apply to cases in which the documents which one of the parties wishes to inspect have come into the hands of the other party in confidence. It has long been established, however, that no documents which have been acquired in confidence can for that reason be privileged from production or inspection. This point was not challenged by counsel for the Science Research Council or British Leyland; and no doubt this also explains why counsel for British Leyland relied almost entirely upon public interest immunity.

Since confidential documents are not privileged from inspection and public interest immunity fails, the tribunal which for this purpose is in the same position as the High Court and the county court, may order discovery (which includes inspection) of any such documents as it thinks fit - with this proviso "Discovery shall not be ordered if and so far as the court [tribunal] is of the opinion that it is not necessary either for disposing fairly of the proceedings or for saving costs."

If the tribunal is satisfied that it is necessary to order certain documents to be disclosed and inspected in order fairly to dispose of the proceedings, then, in my opinion, the law requires that such an order should be made; and the fact that the documents are confidential is irrelevant.

The law has always recognised that it is of the greatest importance from the point of view of public policy that proceedings in the courts or before tribunals shall be fairly disposed of. This, no doubt, is why the law has never accorded privilege against discovery and inspection to confidential documents which are necessary for fairly disposing of the proceedings. What does "necessary" in this context mean? It, of course, includes the case where the party applying for an order for discovery and inspection of certain documents could not possibly succeed in the proceedings unless he obtained the order; but it is not confined to such cases. Suppose, for example, a man had a very slim chance of success without inspection of documents but a very strong chance of success with inspection, surely the proceedings could not be regarded as being fairly disposed of, were he to be denied inspection.

I, of course, recognise that the tribunal, like the courts, has a discretion in the exercise of its power to order discovery. It would, however, in my view, be a wholly wrongful exercise of discretion, were an order for discovery and inspection to be refused because of the court's or the tribunal's

natural aversion to the disclosure of confidential documents notwithstanding that the proceedings might not be fairly disposed of without them.

I cannot accept the view that the courts have recognised that there are circumstances in which the confidentiality of documents should be so respected that their production should be refused even if by doing so the proceedings might not be fairly disposed of. Reg. v. Lewes Justices, Ex parte Secretary of State for the Home Department [1973] A.C. 388 and D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171 have been relied on for support of this view but they do not appear to me to have anything to do with it. In the first case, an application had been made to the Gaming Board to issue a certificate consenting to an applicant applying to the licensing authority for a licence to carry on a gaming club. An anonymous letter had been received by the Gaming Board strongly suggesting that the applicant was not fit to have such a licence issued to him. The applicant applied to be shown this letter. The Gaming Board refused to disclose it. Your Lordships decided that it would have been contrary to the public interest for such a letter (the contents of which could have revealed the identity of its writer) to be disclosed. To disclose it might have discouraged others from communicating to the board what they knew about applicants for fear of libel actions, their safety and maybe their lives. It was of the greatest public importance for the board to obtain every scrap of information it could in respect of anyone proposing to apply for a licence to carry on a gaming club. The basis of your Lordships' decision had little to do with respect for confidentiality, but a great deal to do with the danger of eliminating the board's sources of information.

D. v. National Society for the Prevention of Cruelty to Children had equally little to do with respect for confidentiality. Cruelty to children is a most serious and fairly common social evil. The society for its prevention has done much successful work, a large proportion of which was made possible by the information received by the society. Your Lordships held that it was in the public interest that the identity of the society's informers should not be revealed for much the same reason as the identity of police informers is not revealed. If it were, informers would cease to inform. The result would be strongly against public interest for in the one case little children would suffer and in the other case crime would increase.

My Lords, I cannot agree that industrial tribunals should approach cases such as these relating to confidential documents with any preconceived notion that discovery should not be ordered "except in very rare cases" and only in the last resort. I think that these cases should be approached with a completely open mind. The question being "is discovery necessary for fairly disposing of these proceedings?", if the answer to that question is in the affirmative, as I ventured to think it often may be, then discovery should be ordered notwithstanding the documents' confidentiality. The irrelevant parts of the documents should, of course, be effectively covered up.

In my view, it would be impossible for a tribunal to decide whether the disclosure of confidential documents was necessary for fairly disposing of the proceedings, without examining the documents. I think that in Science Research Council v. Nassé [1978] I.C.R. 777, 780, the appeal

tribunal did not examine the documents and said "disclosure of the documents ... is ... necessary in order that the industrial tribunal may be in a position to do justice not only to "Mrs. Nassé but to the council, because it overlooked the fact that the council might not wish to make use of the documents even if they were in its favour.

My Lords, I would dismiss both appeals and remit the two cases to the tribunal so that the chairman may now examine the documents which are claimed to be confidential and decide which (if any of them) should be disclosed and inspected, and order any irrelevant parts of the disclosed documents to be covered up. I consider that especially as there has already been such a long delay, it may well be desirable that the question of discovery should be resolved as soon as possible, so that if it is resolved in favour of the complainants, inspection may take place well in advance of the hearing.

LORD EDMUND-DAVIES. My Lords, I respectfully agree with the reasons for dismissing these consolidated appeals advanced in the speech of my noble and learned friend, Lord Wilberforce, which I have had the advantage of reading in draft, and also with the order which he proposes. What follows should therefore be regarded as simply enlarging upon some of the topics involved which are of particular interest and importance.

The principal issue raised is as to the manner in which the discretionary powers conferred on industrial tribunals to order discovery and inspection of documents should be exercised in cases of alleged discrimination in the employment field, where the complainant seeks access to confidential assessments and other documents relating to his fellow employees. The appeals also indirectly concern the powers conferred on county courts in cases of alleged sex or racial discrimination outside the employment field, under Part III of both the Sex Discrimination Act 1975 and the Race Relations Act 1976. The relevant facts are related in the speeches of others of your Lordships and I shall not repeat them.

1. Public interest immunity

I deal first with the plea (advanced only on behalf of the employers of Mr. Vyas, but disclaimed and indeed criticised by the Science Research Council) that such confidential documents are protected by public immunity. It was rightly rejected by a majority of the Court of Appeal [1979] Q.B. 144, Browne L.J. saying, at pp. 180-181:

"I am most impressed by the disadvantages of the disclosure of such [confidential] information ... But I have come to the conclusion that I cannot hold that the disclosure of this information is prohibited by 'public interest privilege.' It is now established that this 'privilege' is not confined to government departments or other organs of the central government, but it has so far been confined to bodies exercising statutory duties or functions. Further, it has so far been confined to cases analogous to the 'police informer' immunity: Reg. v. Lewes Justices [1973] A.C. 388 and D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171. If it extends to the present

cases, it would mean that an employer who wishes to rely on some such confidential report (presumably with the consent of the author) would not be able to do so: [counsel] said that Leylands would accept this, and would rather lose a case than disclose confidential information; but other employers ... might take a different view. Further, if such a 'public interest privilege' applies, the commission [for racial equality] would not be entitled to require such information in their inquisitorial role: see Sex Discrimination Act 1975, section 59 (3) and the Race Relations Act 1976, section 50 (3). And if there was a duty not to disclose such documents in discrimination proceedings it would also apply in ordinary litigation."

To hold that public interest immunity applied here would mean that, whatever the attitude of the parties concerned, it could never be waived and would indeed have to be raised by the chairman or judge himself if not taken by the parties or by the Crown: Reg. v. Lewes Justices [1973] A.C. 388. The manifest intention of Parliament could thereby become substantially frustrated. I therefore concur in holding that this plea of immunity should be rejected.

2. Protection of confidentiality

Learned counsel for the appellants went so far as to submit that the confidential nature of the documents here in question is totally irrelevant to the matter of discovery, and that the tribunal or court should therefore wholly ignore the protests of third parties against the disclosure of information furnished by them in the belief that neither it nor its sources would ever be revealed. Reliance for that submission was placed on cases ranging from Hopkinson v. Lord Burghley (1867) L.R. 2 Ch.App. 447 to McIvor v. Southern Health and Social Services Board [1978] 1 W.L.R. 757; and the Industrial Relations Act 1971, section 158 (1), and the Employment Protection Act 1975, section 18, were adverted to as illustrating Parliament's ability to provide express safeguards for the preservation of confidences when it thinks this is desirable. But for myself I am wholly unable to spell out from the absence of corresponding statutory provisions applicable to the present cases the conclusion that confidentiality is an irrelevance. It is true that it cannot of itself ensure protection from disclosure (Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners [1974] A.C. 405; D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171), but confidentiality may nevertheless properly play a potent part in the way in which a tribunal or court exercises its discretion in the matter of discovery.

There was ample evidence supporting the view expressed by the Court of Appeal that the disclosure to inspection of confidential reports could well create upsets and unrest which would have a general deleterious effect. And a court, mindful of that risk, may understandably - and properly - think it right to scrutinise with particular care a request for their inspection. That is not to say, however, that the fear of possible unrest should deter the court from ordering discovery where the demands of justice clearly require it, but it serves to counsel caution in such cases.

3. Rules governing discovery

As the heading to Mrs. Nassé's first letter showed, her original complaint related solely to "discrimination for trade union activities," and this was adhered to throughout until, in her originating application three months later, she added for the first time, "discrimination against me because I am a married person." I mention this because there is an important difference between the Employment Protection Act 1975 and the Sex Discrimination Act 1975 in that if an employee complains to an industrial tribunal of penalisation because of participation in trade union activities, section 55 (1) of the former Act (now section 25 of the Employment Protection (Consolidation) Act 1978) imposes upon the employer the burden of establishing the contrary. But no corresponding provision is contained in the latter Act or in the Race Relations Act 1976 upon which Mr. Vyas relies.

Mrs. Nassé's employers expressly conceded the relevance to her complaint of the withheld documents. That concession, in combination with the aforementioned statutory provision in her favour, form the basis of Mr. Kidwell's submission that she was entitled as of right to the interlocutory relief sought. For, so he submitted, as no one suggested that her case was frivolous or vexatious, the interest of others (not being parties to the litigation) in having their confidences preserved had to be ignored. And, he added, the single fact that she had never even been interviewed for the appointment she sought showed that she had been eliminated solely on the basis of her documents and those of the other aspirants, and this established the great importance to her of obtaining discovery. Indeed she had testified to the industrial tribunal that they were "all the evidence I can produce" and had added that she had "no case without them."

My Lords, I have referred to the facts of Mrs. Nassé's case in a little detail because they are, as I think, helpful in considering the proper approach in this matter of discovery. Learned counsel for both appellants stoutly submitted that in such circumstances a general order for production and inspection of all relevant documents should forthwith be made. As to that, it has to be said in the first place that acceptance of the submission would involve departure from the settled practice of industrial tribunals, regarding which Phillips J. in Stone v. Charrington & Co. Ltd. (unreported), February 15, 1977, made the following wise observations, based upon his great experience of the practical operation of the relevant legislation:

"Industrial tribunals were set up with the purpose of operating cheaply, quickly and informally, and as far as possible therefore it is desirable that the formalities of the regular courts should be avoided. To introduce a formal system of discovery and inspection, interlocutories, and so on, might in the abstract produce more perfect justice, but it would be at such great cost in time, money and manpower that the whole machine would grind to a halt. ... Occasionally it becomes necessary for adjournments to be granted so that unforeseen problems can be considered in the light of additional documents and inquiries, or further particulars. No doubt that is sometimes inconvenient and is not an ideal solution, but it is the only alternative to an elaborate structure of interlocutory proceedings. ... We should

certainly not discourage ... making orders for particular discovery, and so on, in cases where to do so is really necessary to ensure the fair trial of the application; but it would be absurd to do so as a matter of routine in every case."

The second thing to be said about the appellants' submission that they are entitled as of right to general discovery is that it is unacceptable whenever (as here) disclosure is resisted; and this even though a party is in the ordinary way permitted to inspect relevant documents listed by his opponent as being in his possession, custody or power. Indeed, the rules governing discovery in cases arising under these three statutes are no different in nature from those governing discovery in the general run of cases; see, for example, Attorney-General v. North Metropolitan Tramways Co. [1892] 3 Ch. 70; (1895) 72 L.T. 340. Industrial tribunals are regulated by rule 4 (1) (b) of the Schedule to the Industrial Tribunals (Labour Relations) Rules 1974, entitling them to "grant ... such discovery or inspection of documents as might be granted by a county court," while the latter court - whether dealing with Sex Discrimination Act or Racial Discrimination Act cases or indeed any other kind of litigation - "shall not make an order for inspection of ... documents if and so far as the court is of opinion that it is not necessary either for disposing fairly of the proceedings or for saving costs" (County Court Rules 1936, Ord. 14, r. 3 (6)). In a similar manner, complaints of discrimination outside the employment field are required to be dealt with in England "in like manner as any other claim in tort," and in Scotland as in "any other claim ... in reparation for breach of statutory duty": Sex Discrimination Act 1975, section 66 (1); Race Relations Act 1976, section 57 (1).

So an industrial tribunal or county court needs to be satisfied not only of the relevance of documents, but also that inspection of them - and each of them - is "necessary" for achieving one or both of the purposes indicated. Admissions already made by the party against whom inspection is sought may have rendered discovery unnecessary, or (as Mr. Lester Q.C. conceded) the probative value of documents may clearly be so slight as to render unjustifiable an order for their inspection. Or the very nature of the documents, their dates, or other features may indicate that they are unlikely to prove "necessary." Again, a request for inspection of a great mass of documents, without any attempt at selection, could well be regarded as oppressive. Or resort to the various procedures under the statutes described as "inquisitorial" and "litigious" by Lord Denning M.R. [1979] Q.B. 144, 170, 171A-D and 172F may have yielded as much information as any documents would be likely to do; and, although Mr. Lester disputed the relevance of such procedures to the matter in hand, I see no reason why a tribunal, being naturally reluctant to order discovery of confidential documents if this could properly be avoided, should not first resort to the implementation of such procedures. But, on the other hand, the aforementioned statutory provision in favour of employees created by the Employment Protection Act 1975, section 55 (1), seems irrelevant; for, although it would operate to preclude a successful submission by the employer of "no case to answer," inspection of his documents might

nevertheless be essential for the effective cross-examination of his witnesses and to counter submissions presented on his behalf.

But what if, having heeded all proper considerations, the tribunal or judge in the county court remains in doubt about the necessity, and therefore the propriety, of ordering discovery? Resort may then be had to their statutory power to inspect the withheld documents for themselves, Lord Denning M.R. putting the matter in this way, at p. 173:

"The industrial tribunals should not order or permit the disclosure of reports or references that have been given and received in confidence except in the very rare cases where, after inspection of a particular document, the chairman decides that it is essential in the interests of justice that the confidence should be overridden: and then only subject to such conditions as to the divulging of it as he shall think fit to impose - both for the protection of the maker of the document and the subject of it. He might, for instance, limit the sight of it to counsel and solicitors on their undertaking that it should go no further" (italics added).

With respect, however, I would omit the reference to "very rare cases," for this could convey to some the mistaken notion that a tribunal or judge should approach the problem from the viewpoint that he is being asked to sanction something which, on the face of it, is unwarrantable and that he should seek all means of avoiding it. But, as Lawton L.J. said, the matter is largely one of emphasis, and I am with him when he added, at p. 177:

"In my judgment, when balancing the interest of the applicant against the desirability of preserving confidentiality, the judge or chairman must remember that Parliament has created new causes of action which it has enacted are to be tried like actions in tort. If among the defendants' documents there are some (albeit confidential ones) which will help the applicant to prove his case, he is entitled to see them - the statutory Rules of Procedure and the County Court Rules say so."

4. Conclusion

I studiously refrain from further comment on the facts of these two cases lest I appear to advert, however unintentionally, to their prospects of success, a consideration which has no relevance where no one suggests the claims are frivolous or vexatious. But what is directly in point is that in the case of Mrs. Nassé the industrial tribunal (upheld on appeal) granted her originating application on her ipse dixit that the withheld documents were necessary for the establishment of her claim, while in the later case of Mr. Vyas the Employment Appeal Tribunal (presided over by Phillips J.) with manifest reluctance reversed the industrial tribunal's refusal of discovery, on the ground that to depart from the recent decision in Nassé "would only cause confusion were we at this stage to take a different line from that which has been taken previously."

While the reluctance of Phillips J. is understandable, the outcome in both cases was, in my judgment, unacceptable. For neither tribunals nor

the Employment Appeal Tribunal were possessed of sufficient knowledge to entitle them to decide as they did, and whether any of the documents sought were "necessary for disposing fairly of the proceedings or for saving costs" must for them have been still a matter of mere guesswork. That being the position, the proper course was that described by Arnold J. in British Railways Board v. Natarajan [1979] I.C.R. 326, 333:

"We think that before deciding whether an examination is necessary, the judge or chairman of the tribunal ... or the appellate court ... must decide whether there is any prima facie prospect of relevance of the confidential material to an issue which arises in the litigation; put another way, whether it is reasonable to expect that there is any real likelihood of such relevance emerging from the examination. If there is not, we do not think that the exercise of examination is necessary or should take place."

Whether a tribunal or court should decide that they themselves should inspect must always depend on the particular facts and issues, though it is difficult to see how they can ever properly conclude that discovery is "necessary" without such inspection. But where a court inspection is decided upon, there can be no hard-and-fast rule as to when it should take place. As Arnold J. said further in Natarajan, at p. 333:

"... it is, we think, a matter of convenience in each case whether the examination should take place at the interlocutory stage of discovery or immediately the matter arises at the trial. We can conceive that there would be many cases in which, having regard to the probable way in which the material, if found relevant, would have to be treated, that it would be essential for the decision to be made at the interlocutory stage of discovery. But there are also cases where having regard to the way in which the material would have to be dealt with, such an early examination would not be necessary. That is a matter which we think must be decided in relation to each case in which the point is relevant."

The Court of Appeal rightly held that discovery should not have been ordered in either of these two cases without the respective industrial tribunals or the appellate courts first inspecting the withheld documents. That unfortunately not having been done, it follows that both appeals should be dismissed. The cases should be remitted to the respective industrial tribunals, so that they may consider afresh the matter of discovery in the light of the observations of your Lordships' House.

LORD FRASER OF TULLYBELTON. My Lords, these appeals raise questions of much practical importance about the powers of industrial tribunals and county courts to order discovery and inspection of confidential documents in proceedings by persons complaining of discrimination on the ground of sex, race, or trade union activities, contrary to the recent Acts making such discrimination unlawful. The first question is whether confidential documents relating to persons other than the complainers are covered by public interest immunity, with the result that tribunals and courts cannot order them to be disclosed. If the answer to that question

is that the documents are not immune from disclosure in such proceedings, a second question arises as to the circumstances in which tribunals (or county courts) should order them to be disclosed.

In one appeal the appellant and claimant is a married woman, Mrs. Nassé, who was employed by the Science Research Council ("S.R.C.") as a clerical officer at their Appleton laboratory. In 1977 two other clerical officers, one a man and the other a woman, who was then single but has since married, were interviewed for promotion, although they were both junior to Mrs. Nassé in terms of service and in her view their claims to promotion were no better than hers. Mrs. Nassé was not called for interview at that time. The appellant complainer in the other appeal is Mr. Vyas who was employed by British Leyland U.K. Ltd. ("B.L.") as a senior supplies analyst. Mr. Vyas is of Asian origin. He applied for transfer to one of the vacancies in the same grade as the job that he held at that time. He was not selected for transfer but two other men, one of whom was of a lower grade than he was, were transferred to the job for which he had applied.

In both appeals the complainers allege, and invite an industrial tribunal to infer, that the reason why they were not selected for interview (in Mrs. Nassé's case) or for transfer (in Mr. Vyas's case) must have been unlawful discrimination by the employers. Mrs. Nassé complained that the S.R.C. had penalised her for militant behaviour as chairman of the local subbranch of a trade union, and had also discriminated against her because she was a married woman, and that they had thereby acted contrary to section 53 of the Employment Protection Act 1975, and section 6 of the Sex Discrimination Act 1975. Mr. Vyas's complaint was that B.L. had discriminated against him because of his racial origin, contrary to section 4 (2) (b) of the Race Relations Act 1976. The common feature of both cases which is relevant for present purposes is that the allegations involve comparison between the complainers' qualifications and those of other employees with whom they were in competition for promotion or transfer. The argument for both complainers, in its simplest form, is that all records and reports bearing upon the qualifications of the appellants themselves and of their fellow employees who were preferred to them must be relevant for the purpose of such comparison and therefore that production and inspection of all these records and reports should be ordered as of course and in advance of the hearing by the industrial tribunal. The arguments for the two appellants on the principles which should be applied did not, in the end, raise substantially different issues, and they can I think be considered together.

The employers (respondents in the appeals) presented quite separate arguments. B.L. contended that the documents which are the subject of dispute fall within a class of documents which is protected from disclosure by what was known formerly as Crown privilege, now as public interest immunity. The S.R.C. did not rely on public interest immunity, and indeed they supported the complainers in arguing against it, but they argued that the documents should not be ordered to be produced unless they were not only relevant, but necessary for the fair disposal of the case. The point at issue between the S.R.C. and the complainers came down eventually to this: there being no immunity for the documents, is

the discretionary power of a tribunal to refuse to order their production excluded if they are relevant (as the appellants contended) or only if they are not merely relevant but necessary for fairly disposing of the proceedings (as the S.R.C. contended)? To put it the other way round, is the tribunal bound to order discovery and inspection of all documents that are relevant, or only of those that are necessary for fairly disposing of the proceedings?

The first question is whether the documents in question are protected by public interest immunity. The disputed documents in Mr. Vyas's appeal are the following. (1) The employment records of all the employees who were interviewed for the position for which Mr. Vyas unsuccessfully applied. These records would include records of the employee's service, positions occupied, promotions, personal history forms, personal assessment records, details of commendations and other such matters. (2) The completed interview report forms returned by each and every member of the interview panel who interviewed Mr. Vyas and the other applicants for transfer. In Mrs. Nassé's appeal the disputed documents are the annual confidential reports for the years 1975 and 1976 of the two clerical officers who were selected to appear before the interview panel when she was not, and the minutes of the local review board of meetings at which it considered the annual confidential reports for 1976 of the clerical officers employed at the Appleton laboratory. In both cases the confidential reports relating to the complainers themselves have been disclosed to them, along with certain other information for which they asked. The appeals are concerned entirely with confidential reports on fellow employees. It is apparent that the fellow employees who were the subject of the reports might well object to their being disclosed, and in Mrs. Nassé's case one of them has done so.

Both respondents rightly accepted that the reports were not entitled to immunity from disclosure merely because they were confidential. The law on this matter was stated in the case of Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1974] A.C. 405, 433, by Lord Cross of Chelsea who said:

"'Confidentiality' is not a separate head of privilege, but it may be a very material consideration to bear in mind when privilege is claimed on the ground of public interest. What the court has to do is to weigh on the one hand the considerations which suggest that it is in the public interest that the documents in question should be disclosed and on the other hand those which suggest that it is in the public interest that they should not be disclosed and to balance one against the other."

The considerations that were urged on behalf of B.L. as showing that it would not be in the public interest for the documents concerned in Mr. Vyas's case to be disclosed may be summarised, not I hope unfairly, as follows. (They would apply equally to Mrs. Nassé's case.) First, it was said that disclosure of confidential reports such as are in question here would inhibit candour by senior employees in reporting on the suitability of subordinate employees for promotion and would also inhibit employees from applying for promotion. Secondly, it was said that disclosure would be a breach of faith with the authors of the reports and with the

subjects of the reports, that it would be likely to have an adverse effect on industrial relations, and might well lead to industrial unrest. These arguments were supported by an affidavit from B.L.'s staff director. In Mrs. Nassé's case, although the S.R.C. were not claiming immunity from disclosure, there were affidavits from one of the employees who was interviewed in preference to Mrs. Nassé objecting strongly to disclosure of his own confidential reports and there was a more general objection from the staff side of the S.R.C. Whitley Council to disclosure of all such reports. The public interest was said to be involved because of the importance of having a proper system for making decisions to employ and promote persons in industry in order to secure efficiency, and because of the risk that such a system could not be maintained unless complete candour could be ensured for those responsible for operating it.

The argument based on the need for candour in reporting echoes the argument which was presented in Conway v. Rimmer [1968] A.C. 910 and I do not think that it has any greater weight now than it had then. The objections by and on behalf of employees other than the complainers to having their confidential reports disclosed, readily understandable as they are, do not create a public interest against disclosure. They are based on a private interest which must yield, in accordance with well-established principles, to the greater public interest that is deemed to exist in ascertaining the truth in order to do justice between the parties to litigation. I am not satisfied that disclosure of the contents of confidential reports of the kind in question here would have serious consequences upon the efficiency of British industry. In any event, the possibility of industrial unrest is not a sufficient reason for the courts to fail to give full effect to the intentions of Parliament; the courts cannot refuse to apply the law between litigants because of threats by third parties. Much reliance was placed in argument on a passage in the speech of Lord Hailsham of St. Marylebone in D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171, 230 as follows:

"The categories of public interest are not closed, and must alter from time to time whether by restriction or extension as social conditions and social legislation develop."

Speaking for myself I fully accept that proposition, but any extension can only be made by adding new categories analogous to those already existing, just as in that case immunity was extended to a new category of informers to the N.S.P.C.C. by analogy with informers to the police who were already entitled to immunity. There is no analogy between the suggested public interest in the present cases and the kinds of public interest that have so far been held to justify immunity from disclosure. Such public interest as there is in withholding the documents from disclosure is not enough to justify the creation of a new head of immunity for a whole class of documents.

Two other considerations point against immunity. One is that in some cases immunity would make it impossible for an employee to enforce his rights under the Acts. The confidential information is almost always in the possession of the employer, and, in cases where discrimination cannot be inferred from the bare fact that someone other than the complainer

has been selected for preferment, it may be of vital importance to the complainer to have access to the reports on the preferred individual. This is particularly true where the complaint is based on discrimination on grounds of race or sex, because in those cases the onus of proof is on the complainer. But even where the complaint is of discrimination for trade union activities, and the onus is on the employer, disclosure may be essential in order to do justice between the parties.

The second consideration is that, if public interest immunity applied, it could not be waived either by the employer alone, or by the employer with the consent of the individual who is the subject of a report and of the person who made it. That would be inconvenient, and, in my opinion, quite unnecessarily restrictive.

For these reasons I think that the confidential reports in question here are not protected by public interest immunity. I pass now to consider the circumstances in which production ought to be ordered by a tribunal. For this purpose it is necessary to look first at the three statutes under which the appeals arise - the Sex Discrimination Act 1975, the Race Relations Act 1976, and the Employment Protection Act 1975 (the relevant part of which is now superseded by the Employment Protection (Consolidation) Act 1978). The effect of these Acts, so far as material for present purposes, was to create new statutory duties including duties imposed on employers to refrain from discriminating against employees (in which term I include applicants for employment) on the grounds of their sex, race, or trade union activities. It conferred corresponding statutory rights on employees. Claims by persons that their rights have been infringed in fields other than the employment field "may be made the subject of civil proceedings in like manner as any other claim in tort or (in Scotland) in reparation for breach of statutory duty" - Sex Discrimination Act, section 66 (1), Race Relations Act, section 57 (1), the proceedings being brought in the county court or the sheriff court. Where the complaint arises in the employment field it may be presented to an industrial tribunal - Sex Discrimination Act, section 63, Race Relations Act, section 54 - but the subsequent proceedings are essentially of the same nature as proceedings for discrimination in other fields. So are proceedings under section 54 of the Employment Protection Act 1975 following upon a complaint of discrimination for trade union activity. Accordingly we are concerned with proceedings for tort, or breach of statutory duty, and the ordinary rules with regard to discovery and inspection of documents in such proceedings should apply unless there are express provisions in the statutes, or other special reasons, to the contrary.

As regards express provisions, those applicable to the present appeals are found mainly in the Industrial Tribunals (Labour Relations) Regulations 1974 amended in minor respects in 1978. By rule 4 in the Schedule to the Regulations of 1974 it is provided as follows:

"(1) ... a tribunal may on the application of a party to the proceedings ... made either by notice to the Secretary of the Tribunals or at the hearing of the originating application - ... (b) grant to the person ... making the application such discovery or inspection of documents as might be granted by a county court; ... (c) ... and

may appoint the time at or within which or the place at which any act required in pursuance of this rule is to be done."

The discovery and inspection that might be granted by a county court is regulated by rules of court, including Ord. 14, r. 2 (2) of the County Court Rules which provides that the court may order discovery to be made of such documents as it thinks fit and adds:

"... but discovery shall not be ordered if and so far as the court is of opinion that it is not necessary either for disposing fairly of the proceedings or for savings costs."

So far, therefore, from there being express provision that the ordinary rules for discovery are not to apply, the ordinary rules are in effect incorporated into the rules for industrial tribunals.

Are there then special reasons why the ordinary rules should be applied in a way different from that in which they are applied by the county court? Some reasons were suggested. Counsel for the appellants, who argued that all relevant information should be disclosed, relied on provisions in the statutes restricting the obligations of respondents to disclose information for certain purposes, not including proceedings in respect of the tort of discrimination. Thus in the Employment Protection Act 1975, section 17 imposes on an employer an obligation, for the purposes of collective bargaining with a trade union, to make very extensive disclosure of information to the trade union representatives. But section 18, which limits the obligation, provides that no employer shall "by virtue of section 17 above" be required to disclose inter alia "(c) any information which has been communicated to the employer in confidence. ..." The provisions of sections 17 and 18 are derived from the Industrial Relations Act 1971 (repealed and partly re-enacted by the Trade Union and Labour Relations Act 1974). Section 17 corresponds to section 56 of the Act of 1971. Section 22 of the Act of 1971 created a civil right in employees not to be unfairly dismissed. Section 158 of the Act of 1971 is in terms almost identical with those of section 18 of the Act of 1975, and it gave employers immunity only against the obligations to disclosure arising "by virtue of section 56" (or section 57 which required large employers to disclose information to their employees). The argument, as I understood it, was that Parliament had had in mind the need to protect employers from an obligation to disclose confidential information where the obligation arose "by virtue of" section 17 of the Act of 1975 or sections 56 and 57 of the Act of 1971, but had not thought it appropriate to give protection from such obligation arising from other sources such as section 22 of the Act of 1977 or the general law applicable to proceedings for tort under the Act of 1975. The only protection that Parliament considered appropriate for confidential information in proceedings before an industrial tribunal was the power given to tribunals to sit in private - see paragraph 3 of Schedule 6 to the Act of 1971 (repeated in paragraph 21 of Schedule 1 to the Act of 1974) and rule 6 (1) (b) of the Schedule to the 1974 Regulations for Industrial Tribunals, to which I have already referred. A similar point arises under the Sex Discrimination Act where section 61 (1) provides that information given to the Equal Opportunities Commission in connection

with a formal investigation shall not be disclosed by the commission except in certain events which include (a) on the orders of the court and (f) for the purpose of civil proceedings to which the commission is a party. Section 61 (3) of the Act directs the commission in preparing its report to exclude so far as consistent with their duty, any matter which relates to the private affairs of an individual or business interests of any person "where the publication of that matter might, in the opinion of the commission, prejudicially affect that individual or person." These provisions also show that Parliament did not think it necessary to give any special immunity against disclosure of confidential information except in the case of a formal investigation. There are exactly similar provisions in the Race Relations Act. The argument seems to me quite correct so far as it goes, but the conclusion to which it leads is that Parliament, having made no special provisions for discovery in proceedings before an industrial tribunal, must be presumed to have intended that (as the 1974 Regulations say) discovery should be "such as might be granted by a county court," neither more nor less.

Several arguments were adduced on behalf of the respondents with a view to showing that discovery in proceedings under these statutes should be more restricted than in civil proceedings. One was that adequate other means have been specially provided by the statutes for enabling complainers to obtain information, and that there is therefore no need for the ordinary rules of discovery to be applied in their full rigour. A statutory power of interrogation ("the questionnaire procedure") is provided by section 74 of the Sex Discrimination Act with a view to helping an aggrieved person to decide whether to institute proceedings. The respondent is bound to answer the questionnaire and the court may draw an adverse inference il it considers his replies to be evasive or equivocal. A further provision is that by section 75 of the Act the Equal Opportunities Commission may give assistance to a complainer both in the form of advice and of financial aid. Moreover the Equal Opportunities Commission has power under section 57 to conduct a formal investigation for any purpose connected with carrying out its statutory duties, and to require any person to furnish under section 59 written and oral information and to produce documents. No doubt the use of these procedures, especially the questionnaire procedure, will often make extensive discovery of documents unnecessary, but I do not think it will do so in all cases. Some respondents may be less responsible than the respondents in the present appeals and it would not be right that there should be no means of verifying their replies to the questionnaire by reference to their own records. Even where frank replies to the questionnaires are made, they may be of less use in revealing the respondent's reasons than his actual records and reports. It is not so much that the reports are likely to contain positive statements of discrimination on grounds of sex or race or trade union activity, as that they may, by their silence as to any particular merits of an employee who has been promoted, lead to an inference that the only reason for his being promoted in preference to the complainer must have been that the employer had discriminated against the complainer. As regards the formal investigations, these will be directed to the "strategic" object of ascertaining the practice in a firm

or a whole industry, and the commission is directed not to disclose information received in connection with a formal investigation except under certain conditions, one of which is that publication must be in the form of a summary or other general statement which does not identify any person to whom the information relates - Sex Discrimination Act, section 61 (1) (c). Such a summary would be of little use to complainers such as the present appellants who rely upon comparisons with particular persons in order to prove their complaint.

Another suggested reason why discovery in proceedings under the statutes should be more restricted than in ordinary civil proceedings was that disclosure of personal particulars about an employee (such as the successful candidate for promotion) would be more objectionable when made to a colleague beside whom he would have to continue working than it would be when made by a party to an ordinary litigation who would not usually have a continuing relationship with the opposing party. A hearing in private (which may be ordered by a tribunal for the purpose of hearing evidence of information communicated to the witness in confidence - rule 6 (1) (b) in the Schedule to the 1974 Regulations) - provides no solution of this difficulty, because it does not avoid disclosure to the complainer, who is a fellow employee. There is force in this argument, but it should be possible, by the use of the ordinary rules of discovery, to protect an employee from any embarrassing disclosure which is not absolutely necessary for disposal of the case. Discovery of confidential reports sought by one party and objected to by the other should not be ordered when the same information can be obtained from other sources which are not confidential or which do not contain sensitive material. The court or tribunal always had a discretion to refuse to order discovery where it would operate oppressively; oppression could occur if the quantity of documents involved is large or if the information is private and could be obtained in another way without infringing privacy: see Attorney-General v. North Metropolitan Tramways Co. [1892] 3 Ch. 70. Where discovery of confidential reports has to be ordered in spite of objections, every effort should be made to avoid disclosing sensitive information by covering up any parts of the documents disclosure of which is not essential. But where disclosure is necessary then in my opinion it must be made and personal privacy must be sacrificed in the interest of justice.

Where the holder of reports or other documents objects to producing them on the ground that they have been written on the basis that they will be confidential or when they contain sensitive private particulars about third parties, it will be the duty of the judge or of an appropriate officer of the court to read them and decide whether disclosure of the contents is necessary for the fair disposal of the case, or for saving expense. On a procedural level, we heard some argument about the stage at which discovery ought to be ordered in proceedings before an industrial tribunal. The respondents contended that discovery and inspection should not normally be made until the hearing. The appellants contended that it should normally be made at the interlocutory stage. Rule 4 (1) (quoted above) certainly contemplates disclosure at the interlocutory stage as a possibility; but it does not seem to indicate that it is to be normal practice. I can see arguments tending in both directions. In favour of early disclosure,

there is the fact that there will be cases where discovery should satisfy a complainer that his complaint is unfounded and that proceedings ought to be dropped at once without further expenditure of time and money. Moreover if the number of documents to be discovered is large, then discovery at the hearing will almost certainly cause delay. On the other hand the procedure before an industrial tribunal is less formal than in court, the pleadings are exiguous; and hearings often take place very shortly after proceedings have been instituted. These are all factors tending to suggest that interlocutory procedure relating to discovery should be avoided if possible: see Stone v. Charrington & Co. Ltd. (unreported) in the Employment Appeal Tribunal, February 15, 1977, judgment of Phillips J. The solution seems to me very much a matter for the industrial tribunals and the Employment Appeal Tribunal to work out in the light of experience; the practice probably ought to be flexible and to have regard to such matters as the nature of the case and the volume of documents involved. I agree entirely with the observations on this matter of Arnold J. in British Railways Board v. Natarajan [1979] I.C.R. 326, 333.

We were reminded during the argument that the statutes under which these appeals arise apply not only to England but also to Scotland (though not to Northern Ireland) and our attention was called to S.I. 1974 No. 1387 which regulates the procedure of tribunals in Scotland by rules which are almost exactly the same mutatis mutandis as the rules for tribunals in England. The effect is to apply the sheriff court rules as to granting commission and diligence for recovery of documents. If there had been anything in Scots law or practice on this matter which seemed to make the kind of approach that I have suggested unsuitable for application in Scotland, I would have reconsidered my view. But I do not think there is. It seems that confidentiality (in the sense of immunity) is rather more extensive in Scotland where it applies to a private diary - see Duke of Argyll v. Duchess of Argyll, 1962 S.C.(H.L.) 88 - than in England, but I do not think there is any difference in the extent of immunity relevant to the question raised here. The court in Scotland will exercise its discretion to refuse to order a third party to produce private documents containing relevant information if the information has been (or I think can be) obtained from other sources which do not involve disclosing private information: see North British Railway Co. v. Garroway (1893) 20 R. 397. The Scottish system of having excerpts taken from books and records by a commissioner, appointed as an officer of the court, would make it easy in a case where disclosure is to be dealt with at the interlocutory stage, to avoid disclosing personal particulars about third parties, unless their disclosure is essential. Accordingly I do not see any reason why the views I have expressed in these appeals should not be conveniently applicable by a tribunal sitting in Scotland.

The result is that I agree substantially with the principle stated in the Court of Appeal by Lord Denning M.R. and approved by Browne L.J. (which has been quoted by my noble and learned friend, Lord Wilberforce) except that I would omit from it the words "in the very rare cases." I doubt whether the cases in which the chairman of an industrial tribunal will decide that disclosure of confidential reports is necessary will be very

rare, and I do not think it would be right to suggest that the chairman should approach consideration of any particular case with a presumption against disclosure.

I come back at last to the instant appeals. In Mrs. Nassé's case the chairman of the industrial tribunal ordered discovery of the documents in question without having seen them, and his decision was upheld by the Employment Appeal Tribunal. In Mr. Vyas's case the chairman of the industrial tribunal refused to order discovery and his decision was reversed by the Employment Appeal Tribunal. In my opinion the latter tribunal erred in both cases in ordering discovery, in spite of objections by the respondents, without the chairman of the respective industrial tribunals having seen the documents. I agree with the Court of Appeal that both cases should go back to an industrial tribunal so that the chairman can look at the documents now. He may be able to decide, immediately after reading them, whether it is essential that they should be produced in whole or in part, or he may think it better to defer a decision in one or other case, or in both cases, until the hearing. The reason why I think the chairman should look at the documents now is that the long delay, which has already occurred by reason of the appeals, has prevented the complaints from being disposed of rapidly and informally, and has therefore removed one of the main objections to dealing with the discovery at the interlocutory stage.

I would dismiss both appeals and make an order in the terms proposed by my noble and learned friend, Lord Wilberforce.

LORD SCARMAN. My Lords, I also would dismiss both appeals. I would respectfully adopt the reasoning and the conclusion of my noble and learned friend, Lord Fraser of Tullybelton, subject only to the observations which I now make upon these appeals.

The confidential nature of a document does not, by itself, confer "public interest immunity" from disclosure. The confidential nature of a document or of evidence is no ground for a refusal to disclose the document or to give evidence, if the court requires it: Alfred Crompton Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2) [1974] A.C. 405 and Attorney-General v. Clough [1963] 1 Q.B. 773.

For myself, I regret the passing of the currently rejected term "Crown privilege." It at least emphasised the very restricted area of public interest immunity. As was pointed out by Mr. Lester Q.C. who presented most helpful submissions on behalf of the two statutory bodies as well as specifically for the appellant, Mr. Vyas, the immunity exists to protect from disclosure only information the secrecy of which is essential to the proper working of the government of the state. Defence, foreign relations, the inner workings of government at the highest levels where ministers and their advisers are formulating national policy, and the prosecution process in its pre-trial stage are the sensitive areas where the Crown must have the immunity if the government of the nation is to be effectually carried on. We are in the realm of public law, not private right. The very special case of D. v. National Society for the Prevention of Cruelty to Children [1978] A.C. 171 is not to be seen as a departure from this well established principle. Immunity from disclosure existed in that case because the House