“1. There is no principle of public interest immunity, as that expression was developed from Conway v Rimmer[1968] AC 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 SRC; 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 extent 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. This 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] ICR 884 , 887, per Phillips J and British Railways Board v Natarajan[1979] ICR 326 per Arnold J well indicate the lines of a satisfactory procedure, which must of course be flexible.”
“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 an 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. […] 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. […] 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 [ Natarajan ]: ‘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.’”