An Introduction to Administrative Law

By Peter Cane | Go to book overview

15
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.


PRE-TRIAL INFORMATION-GATHERING

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

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1
The rules discussed here also apply, mutatis mutandis, to other civil proceedings and to criminal prosecutions. As to the latter see R v Governor of Brixton Prison, ex parte Osman [ 1991] 1 WLR 281; R v Davis [ 1993] 1 WLR 613; R v Keane [ 1994] 1 WLR 746; T. R.S. Allan [ 1993] Crim LR 660, 665-8.

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An Introduction to Administrative Law
Table of contents

Table of contents

  • Clarendon Law Series ii
  • Title Page iii
  • Preface v
  • Contents vii
  • Contents xxxv
  • Part I - Rules and Principles of Judicial Review 1
  • 1 - The Nature of Judicial Review 3
  • 2 - The Scope of Judicial Review Public Law and Private Law 12
  • 3 - Applicants 42
  • 4 - Remedies Uses and Availability 62
  • 5 - Procedures 89
  • 6 - Authority 109
  • 7 - The Decision-Making Process (i) 133
  • 8 - The Decision-Making Process (ii) 160
  • 9 - The Output 208
  • 10 - Estoppel 218
  • Part II - Rules and Principles of Liability II 231
  • II- Introduction 233
  • 12 - Liability in Tort 241
  • 13 - Government Contracts 257
  • 14 - Restitution 276
  • Part III- Information 279
  • 15 - Information and Litigation 281
  • 16 - Government Secrecy and Freedom of Information 292
  • Part IV - Non-Judicial Control 301
  • 17 - Parliament the Constitutional Functions of Parliament 303
  • 18 - Investigating Complaints 314
  • 19 - Tribunals 331
  • Part V - Wider Perspectives on Judicial Control 345
  • 20 - Constitutional and Political Background 347
  • 21 - Judicial Review and the Administrative Process 378
  • Index 393
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