R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611
Rose LJ:....[It is] common ground that in judicial review proceedings general discovery is not available as it is in a writ action under Ord 24, rr 1 and 2, that an application can be made under Ord 24, r 3, which by virtue of Ord 24, r 8 will be refused if discovery is not necessary for disposing of the case fairly, and that the judgments of the Court of Appeal inR v Secretary of State for the Environment, ex p Islington London BC (1991) Independent, 6 September are pertinent. In that case Dillon LJ said:
"In the case of R v Secretary of State for the Home Dept, ex p Harrison [1988] 3 All ER 86 this court accepted two submissions of Mr Laws, which are referred to as his 'narrower argument' and his 'wider argument'. The wider argument is stated to have been that an applicant is not entitled to go behind an affidavit in order to seek to ascertain whether it is correct or not unless there is some material available outside that contained in the affidavit to suggest that in some material respect the affidavit is not accurate. Without some prima facie case for suggesting that the affidavit is in some respects incorrect it is improper to allow discovery of documents, the only purpose of which would be to act as a challenge to the accuracy of the affidavit. With that I would, in general, agree(and indeed the decision binds us. But I would add the qualification that if the affidavit only deals partially, and not sufficiently adequately, with an issue it may be appropriate to order discovery to supplement the affidavit, rather than to challenge its accuracy. That must depend on the nature of the issue".
The narrower argument referred to in that passage is not relevant for present purposes.
McCowan LJ said:
"The second matter which emerges from the authorities is that unless the applicant in judicial review is in a position to assert that the evidence relied on by a minister is false, or at least inaccurate, it is inappropriate to grant discovery in order to allow the applicant to check the accuracy of the evidence in question".
Mr Pleming submitted that the evidence for the Foreign Secretary in the affidavit of the Foreign Secretary himself, and of Mr Manning, demonstrates, particularly when compared with the far fuller summaries of the minutes exhibited elsewhere in the evidence, that the affidavit summaries are at best incomplete, and at worst misleading.....
Mr Pleming submitted that it is no sufficient answer to a claim for discovery to make a bare assertion that the summaries provided are accurate and complete. The court should exercise its power, which is not enjoyed by House of Commons committees, to compel disclosure. This, he submitted, was not a fishing exercise or a 'Micawber' application, and discovery was sought in relation to only two documents. If the summary of the minutes provided to the Foreign Affairs Committee was accurate and complete, there was no reason why the minutes should not be disclosed. If it was inaccurate, the minutes should be disclosed.
Mr Richards, at the outset of his submissions, drew the court's attention to the terms of a letter dated 11 May 1994, sent by the Foreign Secretary personally to the Foreign Affairs Committee, which contained the unambiguous assurance that the summaries of the minutes which had been provided to that committee and which are, or will be exhibited to affidavits before this court, are 'full and accurate'. He submitted that, in the light of Ex p Islington London BC there was no basis for going behind the evidence or the summaries and looking at the minutes themselves.
In my judgment, although the affidavits of the Foreign Secretary and of Mr Manning give manifestly incomplete summaries of the minutes (to which indeed neither of them refers) and of the advice tendered to the Foreign Secretary, the Foreign Secretary's letter of 11 May 1994 provided, in the circumstances of this case, an effective answer to the claim for discovery when taken in conjunction with the summaries of the minutes exhibited elsewhere in the evidence. There appeared no basis, looking at this total picture, for questioning the accuracy of those summaries which, in the light of Ex p Islington London BC, seems to be a necessary prerequisite for granting discovery of original documents. Furthermore, the summaries, in my view, provided the applicants with highly valuable ammunition to which it seemed unlikely that the minutes themselves would materially add. I was, therefore, wholly unpersuaded that disclosure of these minutes was necessary for the fair disposal of the issues in this case. It was for these reasons that we indicated at an earlier stage that disclosure would not be ordered.
