§ 6.16 p.m.
§ The Lord Chancellor (Lord Mackay of Clashfern) rose to move, That the draft order laid before the House on 16th November he approved.
§ The noble and learned Lord said: My Lords, I beg to move.
§ This order will amend the principal legislation governing the county courts in Northern Ireland so as to augment the current powers of those courts to make orders in relation to the disclosure of documents and the inspection of property. At present, unlike the other courts dealing with civil disputes in both England and Wales and in Northern Ireland, the county courts in Northern Ireland are unable to make orders for what is commonly known as third-party and pre-proceedings discovery. The absence of these powers can mean, for example, that a party can obtain access to relevant evidence only by requiring the attendance of a witness at court. This position has been widely regarded as unsatisfactory, and the order I have placed before the House is designed to meet these concerns.
§ Accordingly, the order will enable a party to specified types of proceedings in a county court to seek access to documents which he knows or believes to exist but which are not under his control or that of any other party to the proceedings. Similarly, he will be able to ask the court to allow him to inspect property which neither he nor any other party to the proceedings owns. In respect of prospective litigation, he will also be able to seek an order for access to documents or other material which is likely to be relevant in proceedings which have not yet been commenced.
§ I have mentioned that identical powers are already available to the High Court in Northern Ireland. These are set out in Section 21 of the Administration of Justice Act 1969 and Sections 31 to 33 of the administration of Justice Act 1970, and the contents of the order have been modelled closely on the established statutory provisions for the High Court. Because of this, it may not be necessary for me to recount all of the provisions of the order in great detail, but it may be helpful to explain briefly the main features of the order.
§ Article 3 inserts three new articles into the County Courts (Northern Ireland) Order 1980. The new Article 42A, which deals essentially with disclosure in 509 anticipation of litigation, provides at paragraph (1) that the court may order the inspection of, and the taking of samples from, any property which may be relevant to subsequent proceedings. Paragraph (2) provides that the court may order a person who is likely to be party to subsequent proceedings in respect of a claim for personal injury or death to disclose and produce any relevant documents under his control.
§ The new Article 42B, which deals in essence with disclosure by a person who is not one of the parties to proceedings, provides that in an action for personal injury or death the court may order such third party to disclose and produce any documents under his control which are relevant to the proceedings. The court is given corresponding powers to order the inspection of property which does not belong to a party to the proceedings.
§ The new Article 42C makes a number of miscellaneous provisions supplementary to Articles 42A and 42B. It specifies the extent to which the new provisions are to apply to the Crown and provides that a county court is not to make an order under the new articles in certain specified circumstances. For example, the court should not order the disclosure of documents if it considers that compliance would be likely to be injurious to the public interest. Article 42C also makes provision in relation to the recovery of costs and expenses incurred by persons who are not parties to proceedings.
§ In accordance with the standard procedure for Orders in Council under the Northern Ireland Act 1974, the draft order was subject to a period of public consultation. The proposed enhancement of the powers of the county courts has been widely welcomed in Northern Ireland by the senior judges, practitioners and several other persons and bodies who have commented on the draft order.
§ It is important, I believe your Lordships will recognise, that the county courts in Northern Ireland should have available to them the powers conferred by the order. This is particularly so because the general civil jurisdiction of such courts has been substantially enhanced in recent years, with the result that the county courts are now performing an increasingly significant role in the processing of civil court business. The new powers to be conferred by the draft order constitute a modest but nonetheless valuable improvement in the practice of the county courts in Northern Ireland, and therefore I commend the order to the House.
§ Moved, That the draft order laid before the House on 16th November be approved.—(The Lord Chancellor.)
§ Lord Williams of Mostyn
My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor for his characteristically clear explanation of what is involved in the order. I am also grateful for the courtesy of his office in providing a general indication 510 of what might be said. In particular, I found the explanatory document produced by the Northern Ireland Court Service a model of its kind both in format and content.
§ Lord Holme of Cheltenham
My Lords, I should like to put a question to the noble and learned Lord the Lord Chancellor in relation to Article 42C. My question relates to the public interest. Given that we on these Benches support the order as a useful measure for the county courts, perhaps the noble and learned Lord can provide one or two examples of what constitutes public interest, which is always a sensitive issue in Northern Ireland.
§ The Lord Chancellor
My Lords, I thank the noble Lord, Lord Williams of Mostyn, for his remarks. I believe that the document which has been prepared by the Court Service in Northern Ireland is extremely good. I am glad that he agrees with me. I shall be very happy to pass on his comments to those who have supported me so well and loyally in Northern Ireland in very difficult conditions particularly over the past few years. I sincerely hope that those conditions will not recur. The courts' staff in Northern Ireland have been subject to great pressures in their work and the fact that a compliment of this kind is paid to them in this House is something that I warmly welcome.
As far as the public interest is concerned, the noble Lord is familiar with the discussion that has been going on in this country about certificates issued by Ministers in respect of particular classes of document. That kind of discussion is not thought to be very suitable for the county court. It is fairly clear that such a question arising in a civil case, in the context of Northern Ireland, will be regarded as being a matter for the High Court.
The kinds of considerations that arise in public interest immunity certificates are usually concerned with the level of the document and the nature of the confidentiality attached to it, if it is a government document. Perhaps it is a letter of complaint made to the police. The disclosure of the name of the person who makes the complaint may have an important bearing on the public service. That is just one example, but there are many in the books. In England and Wales the courts have the right to overrule such a certificate. The Minister is simply saying by the certificate that a question of public interest arises in relation to the confidentiality of the information. It is for the court to decide whether that public interest is outweighed by the public interest in doing justice in the particular case which requires that, notwithstanding the certificate, the document should be disclosed. My judgment—which I believe is supported by the consultation—is that these questions are not suitable for the county court. If a question of that kind arose it would be for the High Court to determine.
§ On Question, Motion agreed to.
§ House adjourned at twenty-five minutes past six o'clock.