Information and Litigation
ONE of the greatest obstacles to effective accountability for the performance of public functions is government secrecy. It is extremely difficult to exercise control, by whatever means, over government activity without accurate information about what public authorities are doing. British governments are notoriously secretive, and secrecy is often alleged to be justified 'in the public interest'. In this chapter we will consider the impact of government secrecy on the process of suing public authorities;1 and in the next chapter we will consider some wider issues of secrecy and freedom of information.
In cases where there is an oral trial, oral examination and crossexamination of witnesses is an important way of gaining information. But not all litigation involves oral trials. In particular, in applications for judicial review under RSC Order 53 the evidence of witnesses is normally given in writing ('on affidavit'); there is provision for makers of affidavits to be cross-examined, but oral cross-examination is exceptional. The parties to an AJR are entitled, on formal request and the payment of appropriate charges, to receive a copy of affidavits to be used at the trial; and often the parties agree to mutual exchange of affidavits.
Although, in the British system, the purpose of the trial is not to 'discover the whole truth', it is considered important that parties should be able to gather evidence and information relevant to their case and to do this, as far as possible, before the trial to prevent surprise. The main formal techniques for pre-trial information-gathering are discovery (of documents) and interrogatories. These are known as 'interlocutory procedures'. By means of discovery a party can obtain access to documents in the possession or custody of the other party which are relevant to his____________________