The Weekly Law Reports, March 25, 1983

494
Reg. v. Boundary Commission, Ex p. Foot (C.A.) , [1983]
to do so. Their duty was to consider that report. It fully recorded the A
nature and basis of the 14-constituency proposal then being put forward
by the applicants, and, regardless of whether or not the 14-constituency
option was open to the commission, recommended against it on its merits.
Again the commission fulfilled that duty. Their only further duty is to
report to the Secretary of State, which no doubt they will do as soon as
there are no further obstacles in their way.
There are no grounds for requiring the commission to reconsider the B
applicants' original proposals and the question whether they would or
should have considered revised proposals if they had been submitted to
the commission in reply to the letter of May 1982 simply does not arise,
for no such proposals were ever submitted. Indeed, though more than
seven months have now elapsed since May 1982, they have not yet been
formulated and may, for all we know, prove very difficult to formulate. Q
In these circumstances we can see no possible ground for granting the
proposed or any declaratory or other relief and the appeal will be dismissed.

Appeal dismissed with costs.

Leave to appeal refused.

Solicitors: Sharpe Pritchard & Co. for P. Parkes, Gateshead; Treasury D

Solicitor.
A. H. B.

[HOUSE OF LORDS]

AIR CANADA AND OTHERS . . . . . . APPELLANTS

AND
SECRETARY OF STATE FOR TRADE F
AND ANOTHER RESPONDENTS

1982 June 28, 29, 30; Lord Denning M.R., Watkins

July 1, 2; and Fox L.JJ.
Sept. 24
1983 Jan. 17, 18, 19; Lord Fraser of Tullybelton, G
March 10 Lord Wilberforce, Lord Edmund-Davies,
Lord Scarman and Lord Templeman

Crown — Privilege — Objection to produce documents — Action

challenging legality of increase in airport charges—Airport
authority acting under directions of government minister—
Documents concerned with formulation of government policy
—Certificate claiming public interest immunity—Documents H
unlikely to assist plaintiffs' case—Whether x court entitled to
inspect documents—R.S.C., Ord. 24, r. 13
The British Airports Authority ("B.A.A."), a statutory
body which owned and managed several airports including
Heathrow airport, fixed the charges which airlines had to pay
for using the airport. The _B.A.A. embarked on a programme
1
R.S.C., Ord. 24, r, 13(1): see.post, p. 531C-D.
 The Weekly Law Reports, March 25, 1983

2 WlLJl. Air Canada v. Sec. of State for Trade (H.L.(E.) )

A of major improvements which was originally to be financed
in part from its reserve funds and in part from borrowing.
However, the Secretary of State for Trade who, under the
Airports Authority Act 1975 had certain supervisory powers
over the B.A.A., particularly in financial matters, required
the B.A.A. to finance the improvements from internal revenues.
The B.A.A. imposed a 35 per cent, increase in charges at
Heathrow airport. The plaintiffs, a group of international
g airlines, brought ah action against the Secretary of State and
the B.A.A. claiming, inter alia, declarations that the former
had acted unlawfully and that the increase in charges imposed
by the latter was excessive and illegal. They alleged that, the
Secretary of State's power to give financial directions to the
-B.A.A. was confined to the purposes of the Act of 1975 and
since his dominant motive in giving the instructions.to the
B.A.A. was to reduce the public sector borrowing requirement,
Q the directions were ultra vires and unlawful. The plaintiffs
did not allege that the Secretary of State's true motives were
other than in accordance with government policy as expressed
in a White Paper published in March 1978 and in a statement
by the Secretary of State to the House of Commons in
February 1980.
In order to investigate the Secretary of State's dominant
purpose, the plaintiffs sought the production of certain docu-
j) ments, for which the Secretary of State claimed public interest
immunity and certificates to that effect were signed by the
permanent secretaries of the government departments con­
cerned. The documents in category A consisted of high level
ministerial papers relating to the formulation of government
policy and those in category B consisted of inter-departmental
communications between senior civil servants. Bingham J. held
that the court's concern was to elicit the real truth regardless
£ of whether it favoured one party or the other and that docu­
ments were necessary for the due administration of justice if
they substantially assisted the court in determining the facts
upon which the decision would depend. The judge, being
provisionally inclined to order production of the category A
documents, decided to inspect them first. Accordingly, he
made an order for inspection but stayed the order pending an
appeal. The Court of Appeal allowed an appeal by the
p Secretary of State.
On appeal by the plaintiffs:
Held, dismissing the appeal, that where the Crown objected
to the production of a class of documents on the ground of
public interest immunity, the judge should not inspect the
documents until he was satisfied that the documents contained
material (per Lord Fraser of Tullybelton, Lord Wilberforce
and Lord Edmund-Davies) which would give substantial support
G to the contention of the party seeking disclosure on an issue
which arose in the case or (per Lord Scarman and Lord
Templeman) which would assist any of the parties to the pro­
ceedings, and which was necessary for "disposing fairly of the _
cause or m a t t e r " within R.S.C., Ord. 24, r. 13.(1); that only
if the judge were so satisfied, should he then examine the
documents privately; that since it was improbable that the
documents for which immunity was sought contained any
H material additional to the material that had already been pub­
lished in the White Paper and the statement in the House of
Commons, those documents were unlikely to'be of assistance,
and accordingly, they should not be inspected by the court
(post, pp.."526A-c, 527c-b, 5 3 0 C - F ; 531A, F - G , 535A^F, 5 3 8 E - H ) ;
Conway v. Rimmer, [1968] A,C. 910, H.L.(E.) and Burmak
Oil Co. Ltd. v. Governor and Company of the Bank of England
[1980] A.C. 1090, H;L.(E;). considered..
'Decision'of the Court of Appeal, post, p. - 4 ? 9 F et seq.
affirmed.
 The Weekly Law Reports, March 25, 1983

Air Canada v. Sec. of State for Trade (H.L.(E.) ) [1983]

The following cases are referred to in the opinions of their Lordships in ^
the House of Lords:
Burmah Oil Co. Ltd. v. Governor and Company of the Bank of England
[1980] A.C. 1090; [1979] 3 W.L.R. 722; [1979] 3 All E.R. 700,
H.L.(E.).
Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano
Co. (1882) 11 Q.B.D. 55, C.A.
Conway v. Rimmer [1968] A.C. 910; [1968] 2 W.L.R. 998; [1968] 1 All B
E.R. 874, H.L.(E.).
Crompton (Alfred) Amusement Machines Ltd. v. Customs and Excise
Commissioners (No. 2) [1974] A.C. 405; [1973] 3 W.L.R. 268; [1973]
2 All E.R. 1169, H.L.(E.).
D. v. National Society for the Prevention of Cruelty to Children [1978]
A.C. 171; [1977] 2 W.L.R. 201; [1977] 1 All E.R. 589, H.L.(E.).
Environmental Defence Society Inc. v. South Pacific Aluminium Ltd. Q
(No. 2) [1981] 1 N.Z.L.R. 153.
Glasgow Corporation v. Central Land Board, 1956 S.C.(H.L.) 1, H.L.(Sa).
Reg. v. Lewes Justices, Ex parte Secretary of State for the Home Depart-
ment [1973] A.C. 388; [1972] 3 W.L.R. 279; [1972] 2 All E.R.
1057, H.L.(E.).
Sankey v. Whitlam (1978) 21 A.L.R. 505.
Science Research Council v. Nasse [1980] A.C. 1028; [1979] 3 W.L.R. D
762; [1979] I.C.R. 921; [1979] 3 All E.R. 673, H.L.(E.).
United States v. Nixon (1974) 418 U.S. 683.
Williams v. Home Office [1981] 1 All E.R. 1151.
Woodworth v. Conroy [1976] Q.B. 884; [1976] 2 W.L.R. 338; [1976]
1 All E.R. 107, C.A.

The following additional cases were cited in argument in the House of E

Lords:
Campbell v. Tameside Metropolitan Borough Council [1982] Q.B. 1065;
[1982] 3 W.L.R. 74; [1982] 2 All E.R. 791, C.A.
Hadmor Productions Ltd. v. Hamilton [1983] A.C. 191; [1982] 2 W.L.R.
322; [1982] I.C.R. 114; [1982] 1 All E.R. 1042, H.L.(E.).
Neilson v. Laugharne [1981] Q.B. 736; [1981] 2 W.L.R. 537; [1981] 1
All E.R. 829, C.A. F
O'Reilly v. Mackman [1982] 3 W.L.R. 1096; [1982] 3 All E.R. 1124,
H.L.(E.).

The following cases are referred to in the judgments of the Court of

Appeal:
Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation Q
[1948] 1 K.B. 223; [1947] 2 All E.R. 680; 45 L.G.R. 635, C.A.
Attorney-General v. Mulholland [1963] 2 Q.B. 477; [1963] 2 W.L.R. 658;
[1963] 1 All E.R. 767, C.A.
Attorney-General v. Newcastle-upon-Tyne Corporation [1897] 2 Q.B. 384,
C.A.
British Steel Corporation v. Granada Television Ltd. [1981] A.C. 1096;
[1980] 3 W.L.R. 774; [1981] 1 All E.R. 417, Sir Robert Megarry H
V.-C, C.A. and H.L.(E.).
Burmah Oil Co. Ltd. v. Governor and Company of the Bank of England
[1979] 1 W.L.R.473; [1979] 2 All E.R. 461, C.A.; [1980] A.C. 1090;
[1979] 3 W.L.R. 722; [1979] 3 All E.R. 700, H.L.(E.).
Campbell v. Tameside Metropolitan Borough Council [1982] Q.B. 1065;
[1982] 3 W.L.R. 74; [1982] 2 All E.R. 791, C.A.
Compagnie Financiere et Commerciale du Pacifique V. Peruvian Guano Co.
(1882) 11 Q.B.D. 55, C.A.
 The Weekly Law Reports, March 25, 1983
497
2 W.L.R. Air Canada v. Sec. of State for Trade (H.L.(E.) )
A Conway v. Rimmer [1967] 1 W.L.R. 1031; [1967] 2 All E.R. 1260, C.A.
[1968] A.C. 910; [1968] 2 W.L.R. 998; [1968] 1 All E.R. 874,
H.L.(E.).
Crompton {Alfred) Amusement Machines Ltd. v. Customs and Excise
Commissioners (No. 2) [1974] A.C. 405; [1973] 3 W.L.R. 268; [1973]
2 All E.R. 1169, H.L.(E.).
D. v. National Society for the Prevention of Cruelty to Children [1978]
R A.C. 171; [1977] 2 W.L.R. 201; [1977] 1 All E.R. 589, H.L.(E.).
Duncan v. Cammell, Laird & Co. Ltd. [1942] A.C. 624; [1942] 1 All
E.R. 587, H.L.(E.).
Gaskin v. Liverpool City Council [1980] 1 W.L.R. 1549, C.A.
Home Office v. Harman [1981] Q.B. 534; [1981] 2 W.L.R. 310; [1981]
2 All E.R. 349, Park J. and C.A.
Lonrho Ltd. v. Shell Petroleum Co. Ltd. [1980] 1 W.L.R. 627, H.L.(E.).
Neilson v. Laugharne [1981] Q.B. 736; [1981] 2 W.L.R. 537; [1981]
c
1 All E.R. 829, C.A.
Reg. v. Lewes Justices, Ex parte Secretary of State for the Home Depart-
ment [1973] A.C. 388; [1972] 3 W.L.R. 279; [1972] 2 All E.R. 1057,
H.L.(E.).
Riddick v. Thames Board Mills Ltd. [1977] Q.B. 881; [1977] 3 W.L.R.
63; [1977] 3 All E.R. 677, C.A.
Sankey v. Whitlam (1978) 53 A.L.J.R. 11.
D Science Research Council v. Nasse [1980] A.C. 1028; [1979] 3 W.L.R.
762; [1979] I.C.R. 921; [1979] 3 All E.R. 673, H.L.(E.).
Tamlin v. Hannaford [1950] 1 K.B. 18; [1949] 2 All E.R. 327, C.A.
United States v. Nixon (1974) 418 U.S. 683.
Williams v. Home Office [1981] 1 All E.R. 1151.
The following additional cases were cited in argument in the Court of
E Appeal:
Golden Chemical Products Ltd., In re, The Times, December 10, 1976.
Norwest Hoist Ltd. v. Secretary of State for Trade [1978] Ch. 201; [1978]
3 W.L.R. 73; [1978] 3 All E.R. 280, Foster J. and C.A.
Pan-American World Airways Inc. V. Department of Trade [1976] 1
Lloyd's Rep. 257, C.A.
Reg. v. Inland Revenue Comrs., Ex parte National Federation of Self-
F
Employed and Small Businesses Ltd. [1982] A.C. 617; [1981] 2
W.L.R. 722; [1981] 2 All E.R. 93, H.L.(E.).

INTERLOCUTORY APPEAL from Bingham J.

In an action begun by writ dated October 16, 1980, the plaintiffs, Air
Canada, Air France, Air India, Air Mauritius Ltd., Alitalia-Linee Aeree
Q Italiane S.p.a., Austrian Airlines Osterreichische Luftverkehrsaktiengesell-
schaft, Deutsche Lufthansa Aktiengesellschaft, the Flying Tiger Line Inc.,
Gulf Air Co. G.S.L., K.L.M. Royal Dutch Airlines, Iberia Lineas Aereas
De Espana S.A., Sooiete Anonyme Beige D'Exploitation De La Navigation
AeYienne, Saudi Arabian Airlines, Scandinavian Airlines System, Swiss Air
Transport Co. Ltd., Trans-Mediterranean Airways S.A.L., Trans World
Airlines Inc. and Trinidad and Tobago (B.W.I.A. International) Airways
H claimed against the defendants, the Secretary of State for Trade and the
British Airports Authority (" B.A.A."), inter aha, declarations that certain
acts of the Secretary of State referred to in the pleadings were ultra vires
and unlawful and that the increased charges imposed by the B.A.A. were
ultra vires and unlawful. In a second action (1980 P. No. 4245) begun by
originating summons dated October 6, 1980, the plaintiffs, Pan American
World Airlines Inc. and Trans World Airlines Inc., claimed similar relief
against the same defendants. The actions were consolidated.
 The Weekly Law Reports, March 25, 1983
498
Air Canada v. Sec. of State for Trade (C.A.) [1983]
'.;.. By a summons dated April 8, 1982, the airlines applied for an order A
that the Secretary of State should produce for inspection documents
referred to in a certificate dated June 26, 1981, and signed by Sir
Kenneth Clucas, Permanent Secretary to the Department of Trade, being
the same documents enumerated in a schedule to the Secretary of State's
list of documents served in the action and which the Secretary of State
had objected to produce on the grounds that they belonged to classes
of documents the production of which would be injurious to the public
interest. The documents were divided into two categories; A and B.
Bingham J. held that the airlines had demonstrated a public interest
in the production of the category A documents but not in the category
B documents. He was provisionally inclined to order production of the
category A documents, and accordingly ordered that the documents be
produced for his private inspection. C
By a notice of appeal dated May 25, 1982, the Secretary of State
appealed on the grounds that (1) the judge was wrong in law in deciding
that a public interest in the production of documents fit to be weighed
against what was accepted to be a valid claim for public interest immu­
nity in respect of documents of that class, was shown by establishing
merely that the documents were likely to affect the decision on significant J-J
issues in the action, irrespective of whether they appeared likely to be
helpful or unhelpful towards the party seeking production; (2) the judge
accordingly erred in reaching his provisional conclusion that the docu­
ments should be produced even though he accepted that they were as
likely to harm the airlines' case as to support it; (3) the judge wrongly
concluded that there was a strong probability that the documents would
be a great assistance in resolving, possibly even be determinative of, E
certain issues raised in the airlines' constitutional case upon which the
" minister's thinking . . . is crucial," namely, as to whether in acting
as he did, the Secretary of State exercised his powers with the wrong
dominant purpose and/or taking into account wrong considerations; (4)
such conclusion failed sufficiently to take into account (i) that the docu­
ments were certified expressly as relating to the formulation of policy F
rather than the policy itself and there was no sufficient basis for con­
cluding that the documents would reveal the Secretary of State's think­
ing to the extent of showing what was his dominant purpose or what
considerations were or were not taken into account by him in acting as
he.did or (ii) that there was, in any event, no more than a speculative
possibility that the documents taken as a whole would affect the outcome
of the litigation one way or the other rather than prove to be ultimately G
neutral and / or indecisive in effect.
By a respondent's notice dated June 2, 1982, the airlines sought a
variation of the judge's order to include an order that the Secretary of
State should additionally produce for inspection by the court the docu­
ments in category B on the grounds that (1) the judge having rightly
analysed the airlines' constitutional case and having rightly identified jj
.three classes of issue therein on the..pleadings relating to the Secretary
of. State for Trade, namely (a) whether the Secretary of State imposed a
■financial target on the B.A.A. and thereby abrogated to himself powers
he did not have and usurped the B.A.A.'s discretion (b) whether in
performing certain acts the Secretary of State acted with an ultra vires
purpose, contrary to his statutory powers arid obligations and exercised
his powers'-for extraneous purposes (c) whether the Secretary of State
 The Weekly Law Reports, March 25, 1983
499
2 W.L.R. Air Canada v. Sec. of State for Trade (C.A.)
A. in exercising his powers and duties in relation to the B.A.A. took into
account extraneous considerations and failed to take into account relevant
considerations, rightly concluded that some of the documents of which
production was sought, namely those in category A, were likely to be
necessary for the just determination of issues in (b) and (c) above; (2)
the judge wrongly concluded that (a) such documents were not likely to
be necessary for the just determination of the issues in 1 (a), and/or (b)
B no documents in category B were likely to be necessary for the just
determination of any of the issues in the airlines' constitutional case;
(3) the conclusion in 2 (a) failed sufficiently to take into account the
likelihood that the documents would give substantial assistance to the
court in determining the issues in 1 (a); (4) the conclusion in 2 (b) above
failed sufficiently to take into account that (a) documents in category B,
Q which were described in the certificate as consisting of communications
between, to and from senior officials of various government departments,
contained, recorded, amplified and explained the Secretary of State's
purpose, self-direction and thinking; and (b) as stated in the certificate
" the decisions of ministers are often reflected in department documents
passing at a lower level," and/or was based on the erroneous assumptions
that such documents would necessarily either reflect or contradict the
D minister's thinking which would be fully revealed by the category A
documents.
The facts are stated in the judgment of Lord Denning M.R.

Simon D. Brown for the Secretary of State for Trade.

Denis Henry Q.C. and Trevor Philipson for the airlines in the second
E action.
Samuel Stamler Q.C. and Michael Crystal for the airlines in the first
action.
Cur. adv. vult.

September 24, 1982. The following judgments were read.

p
LORD DENNING M.R. The call today is for more " open government."
It is voiced mainly by newsmen and critics and oppositions. They want
to know all about the discussions that go on in the inner circles of govern­
ment. They feel that policy making is the concern of everyone. So every­
one should be told about it.
In our present case the demand for " open government" comes from
G an unusual quarter. It is made by the airlines of the world. They are
much concerned about the policy of the Secretary of State for Trade. They
say that he has acted unlawfully and unreasonably. They have sued him
for it. They ask to see all the documents which led up to his policy
decisions. Not only at ministerial level. But also at Cabinet level. The
judge has ordered the ministerial papers to be produced. The Secretary
TT of State appeals to this court.

1. Introductory
London's Heathrow is a great airport. It is one of the largest in the
world. Aircraft of all nations fly in and out continuously. They land
and take off. They park and are housed—as occasion may require. They
have to pay the prescribed charges for doing so.
These charges are fixed by a nationalised undertaking called the British
 The Weekly Law Reports, March 25, 1983
500
Lord Denning M.R. Air Canada v. Sec. of State for Trade (C.A.) [1983J
Airports Authority (" B.A.A."). It is a statutory corporation established A
by the Airport Authority Act 1965 which has since been replaced by the
Airports Authority Act 1975. It is of the nature we described in Tamlin
v. Hannaford [1950] 1 K.B. 18. It has no shareholders. It has no
subscribed capital. It borrows all the money it needs. Its borrowings are
guaranteed by the Treasury. It makes no profits. It owes money, but it
cannot be made bankrupt. It cannot be wound up. It is very much a
government concern. The statute contains many provisions putting it B
under the control of the Secretary of State for Trade.
In recent years Heathrow has become very severely congested. So
much so that B.A.A. have made plans to relieve the congestion. They
propose to make a new terminal 4 at Heathrow: and a new terminal 2
at Gatwick: and to make other considerable alterations. These will cost
£500 million to £700 million. B.A.A. have to raise the money for it. In Q
order to do so, they thought of using a reserve of £19 million and borrowing
the rest. But the Secretary of State put his foot down. He would not let
B.A.A. raise the money in that way. He thought that they should raise
it by increasing the charges. That is what they did.
In 1979 B.A.A. decided to increase the charges by 35 per cent. The
British airlines did not object. But the others did. Many airlines from
abroad complained. They made an outcry about it. They said it was a *>
gross overcharge. It was unfair and unreasonable. It was an abuse of a
dominant position. It was discriminatory in favour of British carriers. It
was unlawful.

Actions are brought

The airlines regarded the increase as so excessive that they have brought E
actions in the High Court. They desire to test the legality of the charges.
The pleadings are very elaborate and complex. The statement of claim
and particulars under it cover 217 pages. The defence and particulars
under it cover 140 pages. At this stage we are only concerned with a
preliminary matter. It arises about the discovery of documents. The
airlines wish to see the documents which led to the increase of charges at p
Heathrow. Many of these documents were at a very high level. Some
were to and from ministers themselves. A few came before the Cabinet
itself. The judge has ordered that those at ministerial level should be
disclosed to the airlines, so that they can be used at the trial.
The Secretary of State appeals to this court together with B.A.A. He
claims Crown privilege, now described as public interest immunity. The
Secretary of State says that it is in the public interest that these documents G
should be kept secret. They should not be disclosed for use at the trial.
The airlines must do as best they can without them.

The issues in the case

On a question of discovery, it is necessary to determine what are the
issues in the action. Discovery is only permitted of the documents in the H
possession or power of the party " relating to any matter in question in
the cause or matter," see R.S.C., Ord. 24, r. 3 (1). There are many matters
in question in these actions: but for present purposes the only matter in
question is what is called the constitutional case.
2. The constitutional case
The airlines allege that the Secretary of State broke the rules of our
 The Weekly Law Reports, March 25, 1983
501
2 W.L.R. Air Canada v. Sec. of State for Trade (C.A.) Lord Denning M.R.
A constitution. They say that he gave directions to B.A.A. which he had no
power to give, that he was actuated by an ulterior motive and by irrelevant
considerations. In order for these allegations to be understood, I must go
into a little detail.

(i) Financial target

g Under the Act of 1975 the Secretary of State has power to give the
B.A.A. " directions of a general character " as to how it should conduct its
affairs. But not specific directions. The airlines allege that the Secretary
of State gave B.A.A. specific directions to attain the financial target of
six per cent, and that he had no power to do so.
This arises out of a White Paper which the government issued in 1978
(Cmnd. 7131). It dealt with the nationalised industries. It showed that
C the government was determined to settle an overall " financial target" for
each industry. This target was expressed as a percentage return on the
average net assets employed in the industry. Once the target was settled,
it was to be announced to Parliament by the Secretary of State. He was
also to tell Parliament the reasons for it.
In the case of B.A.A. the Secretary of State on February 26, 1980,
_. announced in the House of Commons:
" I have decided that a reasonable financial duty for the British
Airports Authority would be to achieve on average a rate of return of
six per cent, per annum on net assets revalued at current cost over
the three financial years 1980-81 to 1982-83."
I hope that the members of Parliament understood it. It needs an
g accountant to explain it to me. I expect to you also. In ordinary language
it means that B.A.A. should ascertain the value of its assets—not at their
original cost years ago—but at their present cost if they had to buy them
afresh today. B.A.A. should then aim to get a return of six per cent.
on that value each year. They should fix their charges so as to get that
return.

F (ii) Use of reserves

Before April 1979 B.A.A. had done reasonably well. So well that it
had put £19 million into a reserve. They were thinking of using it so as
to meet some of the big capital expenditure needed for the new terminals
and so forth. The airlines allege that the Secretary of State " froze " that
sum and refused to allow B.A.A. to make use of it.
G
(iii) Borrowing
Under the Act of 1975 B.A.A. had power to borrow money for its
capital improvements provided that the Secretary of State gave his consent.
In February 1979 the Secretary of State ordered B.A.A. not to borrow
any money. He told them that permission to borrow would be refused.
H
(iv) The effect
This decision had a profound impact on the plans of B.A.A. But
they were determined to go ahead with the new terminals at Heathrow
and Gatwick and their other improvements. They felt it was necessary
so as to cope with the traffic. The money had to be raised somehow.
The only way to do it was to make an overall increase of 35 per cent.
on the charges made to users. In their annual report for the. year 1979/
 The Weekly Law Reports, March 25, 1983
502
Lord Denning M.R. Air Canada v. Sec. of State for Trade (C.A.) [1983]
1980 the chairman said: " In order to set its prices at the right level to A
achieve the tough six per cent, financial target, traffic charges were in­
creased by 35 per cent." Note the chairman's word " tough." The air­
lines suggest that B.A.A. were directed to achieve that target without
their consent.

(v) What was behind it all

The airlines say that behind all the decisions of the Secretary of State
there was this broad policy consideration. The country was in a difficult
economic position. Inflation was rampant. The nationalised under­
takings were borrowing too much money—which the government had
to underwrite. The government decided that borrowing in the public
sector had to be cut down. It had to be considered as a whole. In
order to do this, the profitable industries ought to subsidise the unprofit- C
able industries. B.A.A. was one of the profitable industries. It should
increase its charges so as to make the public sector as a whole more
viable. The airlines say that this was an ulterior motive, and an irre­
levant consideration, which the Secretary of State ought not to have
taken into account. He should have considered B.A.A. as a unit on its
own, and not lumped it in with the other nationalised industries, as a -Q
part of the public sector. The airlines suggest that if B.A.A. were
considered on its own there was no need to increase the charges by
anything like 35 per cent.

3. The three strands

Such was the constitutional case alleged by the airlines. The judge
most helpfully divided it into three strands.

(i) The first strand

" The first is an allegation that the Secretary of State imposed a
financial target upon the B.A.A., thereby arrogating to himself
powers which he did not have and usurping the exercise of a dis­
cretion not vested in him . . . The Secretary of State and the B.A.A. F
admit that the Secretary of State was not entitled to impose a
financial target on the B.A.A. but they deny that he did so."
On this issue it is plain that all the documents passing between the
Secretary of State and B.A.A. must be disclosed. Also all memoranda
of meetings or telephone calls. These have been disclosed. No claim
for immunity has been made in respect of them. But a question arises *-»
as to the " purely internal ministry documents." These are the docu­
ments within the ministry—which do not record any exchanges between
the minister and the B.A.A.—but are simply notes or memoranda of the
clerks of the ministry between themselves. The judge refused to order
them to be disclosed.
H
(ii) The second strand
" The second strand of the airlines' constitutional case is the allega­
tion that in performing certain acts the Secretary of State acted
with a purpose which was ultra vires and contrary to his statutory
powers and obligations, that, in a nutshell, he exercised his powers
for purposes other than those for which the powers were entrusted
to him . . . The airlines allege that the Secretary of State's dominant
 The Weekly Law Reports, March 25, 1983
503
2 W.L.R. Air Canada v. Sec. of State for Trade (C.A.) Lord Denning M.R.
A purpose in acting as he did was the purely domestic political purpose
of reducing and containing the public sector borrowing requirement
and not any purpose properly relating to the performance of the
B.A.A.'s duties under the Act of 1975."

(iii) The third strand

B " The third strand in the airlines' constitutional case is very close
to the second. They allege that the Secretary of State took account
of considerations which he should not have done (such as the govern­
ment's desire to reduce the public sector borrowing requirement)
and failed to take account of considerations which he should have
done (such as the alleged fact that the proposed landing charges
would render the United Kingdom in breach of its international
C obligations under the Chicago Convention and the Bermuda II
Agreement)."
These two second and third strands stand together. They involve an
inquiry into the " purpose " of the Secretary of State and the considera­
tions which he " took into account." Any documents are relevant which
go to show what his purpose was, or what considerations he took into
^ account. There are many of these documents. They are divided into
two categories, A and B. The Secretary of State claims that they should
not be disclosed on the ground that it would be contrary to the public
interest. Category A consists of communications at a high level between
ministers or for the use of ministers at their meetings. These include
the preparatory documents prepared for the use of ministers prior to
E their meetings. Category B consists of communications at a little lower
level between senior officials of government departments—not for the
use of ministers but for the use of those who draw up the documents
for the ministers.
The Secretary of State claims public interest immunity for both
categories A and B. The judge held that category A should be disclosed.
There was no immunity in respect of them. But that category B need
F not be disclosed. I must say that this seems a little odd to me. The
documents at the higher level are to be disclosed but those at a little
lower level need not be.
Since the judge gave his decision, six more documents have been
found. They were not in the possession of the Department of Trade.
They were in the possession of the Cabinet office. Thus at the highest
G possible level. They are papers submitted to a Cabinet committee.

4. Illustrations
In order to illustrate the nature of the documents, I will pick out
some samples
H
(i) At Cabinet level
Number, ... Description of Document Date
Memorandum by the Chief Secre­
tary to the Treasury on nationalised
industries cash limits for 1979/80
circulated as a paper for.a Cabinet.
committee March 12, 1979
 The Weekly Law Reports, March 25, 1983
504
Lord Denning M.R. Air Canada v. Sec. of State for Trade (C.A.) [1983]
Number Description of Document Date
2 Extract (section 4—at pp. 9-11)
from the minutes of a meeting of
that Cabinet committee chaired by
the Prime Minister March 15, 1979
5 Cabinet paper entitled " Nationalised
Industries Investment and Financing
Review " July 9, 1979 B
6 Note of a Cabinet discussion record­
ing the Cabinet's decision on docu­
ment 5 above July 24, 1979
(ii) At ministerial level
Category A
Number Description of Document Date
1 Four paragraphs from the minutes
of a meeting attended by the Chief
Secretary to the Treasury (Mr.
Biffen) the Secretary of State for
Trade (Mr. Nott) and 7 officials of D
the Treasury and the Department
of Trade September 24, 1980
Letter S. Clinton Davis M.P. (Par­
liamentary Under Secretary of
State, Department of Trade) to
J. Barnett M.P. (Chief Secretary
to the Treasury) September 4, 1978
Copy letter Sir G. Howe M.P.
(Chancellor of the Exchequer) to
Sir K. Joseph M.P. (Secretary of
State for Industry) February 13, 1980
10 Letter J. Nott M.P. (Secretary of
State for Trade) to Sir G. Howe
M.P. February 28, 1980
75 Discussion paper prepared for
ministers entitled " British Airports
Authority—airport charges " Undated (1978)
(iii) At official level
Category B
Number Description of Document Date
242 Document entitled " conclusions of
a meeting held in the Treasury on
November 9, 1978 "
244 Note of a meeting between officials H
of the Department of Trade and
H.M. Treasury April 11, 1979
247
Document entitled " Nationalised
Undated
251 Industries Capital Expenditure"
Background note entitled " British
Airports Authority—Airport User February 1980
Charges "
 The Weekly Law Reports, March 25, 1983
505
2 W.LJt. Air Canada v. Sec. of State for Trade (C.A.) Lord Denning M.R.
A Those illustrations show that three government departments were
concerned in this matter, the Treasury, the Department of Trade and the
Department of Industry. The ministers in charge of those departments
were " briefed " by their officials. Those officials collected information
from many sources and prepared papers on it to submit to ministers. The
ministers attended a Cabinet committee at which decisions were taken.
B
5. The certificates
In order to claim Crown privilege or public interest immunity, the
practice is for a certificate to be given by a minister. It states his objec­
tion to disclosure and sets out the reasons. In this case, however, this
was not possible because the papers contained privately expressed opinions
of ministers in a previous government. There is a long standing and
C important constitutional rule that ministers of a government formed by
one party are not allowed to see documents of a former government. So
in the present case the certificates were given by the permanent secre­
taries of the departments.
They were given by Sir Kenneth Clucas, the Permanent Secretary to
the Department of Trade, and his successor, Mr. Michael Franklin, and
j-) by Sir Robert Armstrong, the Secretary to the Cabinet. It is clear that
they have given the most careful consideration to each of the documents.
They have described the nature of them and set out their reasons for
objecting. The certificate of Sir Robert Armstrong puts the case so well
that I set it out for permanent record:
" 3. The subject-matter of all the documents is government spend-
ing in relation to the nationalised industries. The allocation of
financial resources between the various sectors in the economy is
one of the most important of the functions of government. Decisions
about it affect the whole of national life. Inside this wider framework
the allocation of resources to nationalised industries is a very im­
portant part of the allocation of resources in the public sector
generally. Its importance is evidenced in this case by the fact that
F it was referred to Cabinet.
" 4. In my opinion it is necessary in the national interest for the
proper functioning of government in this country that documents of
this kind, being documents relating to the formulation of issues of
government policy at the highest level, namely Cabinet committees
and Cabinet, should be withheld from production. The importance
c of confidentiality for the inner workings of government at this level
has been widely recognised and I respectfully refer to the observa­
tions of Lord Reid in Conway v. Rimmer [1968] A.C. 910, 952.
Since that judgment the confidentiality of Cabinet proceedings has
been considered by two independent committees, the Franks Com­
mittee on section 2 of the Official Secrets Act 1911 (1972) (Cmnd.
5104) and the Radcliffe Committee on ministerial memoirs (1976)
H (Cmnd. 6386). Both reaffirmed without qualification the importance
of preserving the confidentiality of the proceedings in Cabinet and
Cabinet committees.
" 5. The policies under consideration in these documents are of
recent date and remain of topical significance. The question of land­
ing fees at Heathrow continues to be a sensitive issue and the persons
involved in the earlier decisions are still active in public life.
" 6. In my capacity as Secretary of the Cabinet I am concerned
 The Weekly Law Reports, March 25, 1983
506
Lord Denning M.R. Air Canada v. Sec. of State for Trade (C.A.) [1983]
to maintain the confidentiality of the decision making process in the A
Cabinet and its committees and the formulation of policy within
them. That confidentiality may be prejudiced not only by the dis­
closure of formal Cabinet Office documents but also of documents
within departments dealing with the formulation of policy on sub-.
jects on which decisions have.been or will be taken in the Cabinet
or its committees. Discussions in Cabinet committees and in the
Cabinet are made on the basis of papers prepared within departments B
which are circulated by the Cabinet Secretariat to the committees or
to the Cabinet. The actual document, whether Cabinet committee
paper or Cabinet paper, is normally drafted in the department
responsible for that item, and the nature of its contents is likely to
be evidenced not only by those departmental documents directly
involved in its formulation, but also by other documents leading to c
the establishment of a departmental view which is then embodied in
the paper submitted to Cabinet or Cabinet committee for discussion,
and, in those departments not responsible for the paper, by briefs
to their ministers on the paper. Moreover, documents prepared for
the Cabinet or Cabinet committee by one department may well have
been the subject of communication between departments at minis-
terial or official level. In the case of documents such as those that
are the subject of this certificate affecting nationalised industries with
several different sponsoring departments subject to numerous and
differing political pressures this will inevitably have been the case..
For these reasons the confidentiality of the decision making process
of the Cabinet and its committees may well be prejudiced by the
disclosure of such departmental and interdepartmental documents. E
" 8. The discussion of policies by Cabinet committee or the Cabinet
itself is evidence that those policies are matters of the highest national
importance. They remain so when being dealt with departmentally. I
would respectfully agree with the remarks of Lord Reid in Conway v.
Rimmer [1968] A.C. 910, 952 where he, having dealt with the
necessity for protecting' Cabinet minutes and the like' from disclosure,
goes on to add, ' And that must, in my view, also apply to all docu­
ments concerned with policy making within departments including, it
may be, minutes and the like by quite junior officials and correspond­
ence with outside bodies.' They are all part of the decision making
process which culminates at Cabinet or Cabinet committee level.
" 9. I understand that oral evidence may be given in these proceed­
ings. If oral evidence were sought to be given of the contents of any G
of the documents to the production of which I have in this certificate
objected, I would wish to object to such evidence on the same grounds
as those hereinbefore set out in relation to the documents in question."
I have read almost the whole of Sir Robert Armstrong's certificate
because it is important that it should be permanently on record.
H
6. The law
This brings me at long last to the law. Mr. Simon Brown told us that
the government regarded this case as the most important since Conway v.
Rimmer [1968] A.C. 910. I hope I shall be forgiven, therefore, if ,1 go
into it at some length.
This is another branch of the law which has changed beyond recognition
during my time. When I was at the Bar, the Crown had a prerogative
 The Weekly Law Reports, March 25, 1983
507
•2 W.L.R. Air Canada v. Sec. of State for Trade (C.A.) Lord Denning MJt.
A which was called Crown privilege. The law said that the Crown was
entitled to full discovery against the subject, but the subject as against the
Crown was not entitled to any discovery at all. "That is a prerogative
of' the Crown, part of the law of England " : see Attorney-General v.
\Newcastle-upon-Tyne Corporation [1897] 2 Q.B. 384, 395, per Rigby L.J.
As a derivative of this prerogative, it was held that, if a minister came to
the courts and certified that it was contrary to the public interest that a
B document or a class of documents should be disclosed, that certificate was
conclusive. The courts of law could not go behind the certificate. The
documents were shut out altogether. No one could see them. In the nine-
, teenth century this prerogative was carried so far that the Crown, through
its ministers, used to object to disclosing reports made by police officers on
street accidents, or by naval officers on a collision at sea. These reports
Q would have been of the greatest value in eliciting the true facts, but the
courts were deprived of the use of them—by the ipse dixit of a minister
or, if he was not available, by the permanent head of his department. This
approach was upheld by the strongest House of Lords that could be
mustered at the time. Seven of them. It was in 1942 in Duncan v.
.'Cammell, Laird & Co. Ltd. [1942] A.C. 624. In a judgment, with which
all the others agreed, Viscount Simon L.C. said that the certificate was
D conclusive. He added, however, at pp. 642-643, that the minister
" ought not to take the responsibility of withholding production except
in cases where the public interest would otherwise be damnified, for
example, where disclosure would be injurious to national defence, or
to good diplomatic relations, or where the practice of keeping a class
of documents' secret is necessary for the proper functioning of the
E public service. When these conditions are satisfied and the minister
feels it is his duty to deny access to material which would otherwise
be available, there is no question but that the public interest must be
preferred to any private consideration."
Five years later there came the Crown Proceedings Act 1947. It enabled
actions to be brought against government departments, In section 28 (1) it
F enabled orders to be made against them for discovery. But there was an
express proviso preserving Crown privilege as laid down in Duncan V.
Cammell, Laird & Co: Ltd. [1942] A.C. 624. It said that this section
shall be
" without prejudice to any rule of law which authorises or requires the
withholding of any document or the refusal to answer any question
G on the ground that the disclosure of the document or the answering of
the question would be injurious to the public interest."
After I became Master of the Rolls in 1962 we launched an attack on
this' Crown privilege. By good fortune or design the court was composed
,in,three successive cases by the same three of us. My brethren Harman
\and Salmon LJJ. and myself. We were called " The Three Musketeers."
H Our attack made good progress. We shot down one certificate after another
for. some reason or other. We were much helped by some good marksmen
from the Commonwealth. But then we suffered a reverse. There came a
fourth case. It was Conway V. Rimmer [1967] 1 W.L.R. 1031. By chance
and not by design the court by that time was differently composed. It was
Davies and Russell LJJ, and myself. I fought hard. But the other two
•brought up their reserves. They held that they were bound by Duncan v.
Cammell Laird & Co. Ltd. [1942] A.C. 624. "The Three Musketeers"
 The Weekly Law Reports, March 25, 1983
508
Lord Denning M.R. Air Canada v. Sec. of State for Trade (C.A.) [1983]
were driven back. I was taken prisoner. But then from over the hill there A
came, most unexpectedly, a relief force. It was the House of Lords them­
selves. In Conway v. Rimmer [1968] A.C. 910. The House declared that
they were no longer bound by their previous decisions. They held that
the certificate of the minister was not conclusive, They held that they
could themselves examine the documents and see whether the disclosure
would be prejudicial to the public interest or not. They overruled the
certificate in that case, and ordered production of the documents. "
This decision of the House did not do away with the prerogative. It
still remained open to a minister of the Crown to give a certificate objecting
to the disclosure of a document or a class of documents on the ground
that it would be prejudicial to the public interest. Although the certificate
is no longer conclusive, it is to be given great weight. It is not to be over­
ridden unless the court is of opinion that the disclosure of the documents c
is necessary for fairly disposing of the matter or, to put it another way,
necessary for the due administration of justice. That is the result, as I see
it, of the four cases in modern times in the House of Lords where the
minister had given a certificate or the equivalent. They are Reg. v. Lewes
Justices, Ex parte Secretary of State for the Home Department [1973] A.C.
388; Alfred Crompton Amusement Machines Ltd. v. Customs & Excise
Commissioners (No. 2) [1974] A.C. 405; Burmah Oil Co. Ltd. v. Governor D
and Company of the Bank of England [1980] A.C. 1090 and Lonrho Ltd.
v. Shell Petroleum Co. Ltd. [1980] 1 W.L.R. 627. In none of those cases
was the certificate overruled. Several of their Lordships said that the
judges were to strike a balance between the public interest in the proper
functioning of the public service, that is, the executive arm of government,
and the public interest in the administration of justice: see for instance per £
Lord Pearson in Reg. v. Lewes Justices, Ex parte Secretary of State for
the Home Department [1973] A.C. 388, 406C-D and per Lord Scarman in
Burmah Oil Co. Ltd. v. Governor and Company of the Bank of England
[1980] A.C. 1090, 1145B. But, in holding the balance, the scales are tilted
in favour of the certificate of the minister. If he has directed himself
rightly and has considered the documents rightly—with reasons which
commend themselves to the court—the court is very unlikely to over- **
throw it.
It is altogether different when the minister has not given a certificate or
its equivalent. Then no question of Crown privilege arises. The distinction
appears from the many cases in recent years on confidential information.
The courts have often had to balance the public interest in preserving
confidences against the public interest in the due administration of justice. G
Sometimes the scales have come down in favour of maintaining confidences
completely, as in D. v. National Society for the Prevention of Cruelty to
Children [1978] A.C. 171. At other times in maintaining them partially
as in Science Research Council v. Nasse [1980] A.C. 1028. In the Court
of Appeal we have often had to do this balancing act. We have come down
sometimes in favour of preserving confidences as in Gaskin v. Liverpool
City Council [1980] 1 W.L.R. 1549 and Neilson v. Laugharne [1981] H
Q.B. 736, and sometimes against them as in Campbell v. Tameside Metro-
politan Borough Council [1982] Q.B. 1065.

7. Overriding the certificate

There is no doubt that the court can override the certificate, but it
should only do so when it is necessary in the interests of justice. , It was
 The Weekly Law Reports, March 25, 1983
509
2 W.LH. Air Canada v. Sec. of State for Trade (C.A.) Lord Denning M.R.

A done in the United States where the Supreme Court overrode the pre­
rogative of President Nixon (see United States v. Nixon (1974). 418 U.S.
683) and in Australia where the High Court overrode the objections of
the Commonwealth government: see Sankey v. Whitlam (1978) 53 A.L.J.R.
11. It is similar to the rule about confidential communications when they
are made to a clergyman, a banker or a medical man. This appears from
the decision of the House of Lords in British Steel Corporation v. Granada
B
Television Ltd. [1981] A.C. 1096, where they approved what I said in
Attorney-General V. Mulholland [1963] 2 Q.B. 477, 489:
" The judge will respect the confidences which each member of these
honourable professions receives in the course of it, and will not direct
him to answer unless not only it is relevant but also it is a proper and,
indeed, necessary question in the course of justice to be put and
C answered."
8. A lesson from experience
A recent case teaches us to give great weight to the certificate of the
minister and not to override it except in extreme cases. In Williams v.
Home Office [1981] 1 All E.R. 1151, Mr. Williams sued the Home Office
D for subjecting him to cruel and unusual punishment. He criticised the
policy of a special " control unit." The Home Office had in their possession
the minutes of high level policy meetings within the department. They
claimed public interest immunity for them. McNeill J. overruled their
objection. He thought that there was a safeguard in that they could only
be used for the purposes of the action: see Riddick v. Thames Board Mills
j , Ltd. [1977] Q.B. 881. So the Home Office did disclose them. His decision
was claimed by the advocates of " open government" to be a " legal
milestone." But the safeguard proved to be no safeguard at all. The
documents were used by a journalist to make severe criticisms of ministers
and of higher civil servants who could not answer back. When this was
brought to our attention, I said that " the ' legal milestone' will have to
be taken up and set back a bit": see Home Office v. Harman [1981]
F Q.B. 534, 558B.
That case is a good illustration of the need for keeping high level
documents secret. Once they are let out of the bag, untold mischief may
be done. It is no use relying on safeguards. The documents must not
be let out of the bag at all. I trust that today we are setting back the
" legal milestone " to the place where it was before.
G
9. The due administration of justice
In all the cases it is said that the courts are required to have regard
to the public interest in the due administration of justice. But I would
point out that this depends on the nature of the issue between the parties.
In some cases it means simply ascertaining the truth—finding out what in
JJ fact happened—and then adjusting the rights and liabilities of the parties
on the faith of it. That is how the judge regarded our present case. He
said:.
" The concern of the court must surely be to ensure that the truth is
elicited, not caring whether the truth favours one party or the other
but anxious that its final decision should be grounded on a sure
foundation of fact. . . . In my judgment documents are necessary
for fairly disposing of a cause or for the due administration of justice
 The Weekly Law Reports, March 25, 1983
510
Lord Denning M.R. Air Canada v. Sec. of State for Trade (C.A.) [1983]
if they give substantial assistance to the court in determining the A
• facts upon which the decision in the cause will depend."
That is why he thought that the ministerial documents in category A
should be disclosed. He said:
" I consider that some of these documents are very likely to be
necessary for the just determination of the second and third issues in
the airlines' constitutional case. They are very likely to affect the B
outcome one way or the other. I do not think any court could be
confident that its decision on those issues was founded on a sure
foundation of fact in the absence of the documents."

10. / differ from the judge

This is where I differ from the judge. The due administration of justice C
does not always depend on eliciting the truth. It often depends on the
burden of proof. Many times it requires the complainant to prove his
case without any discovery from the other side.
Where a man is charged with a crime—no matter how serious or
how minor it may be—the prosecution must prove the case against him
without any disclosure from him of any documents that he has. When ^
a public authority is accused of any abuse or misuse of its power, or any
non-performance of its public duties—in proceedings for mandamus or
certiorari or under R.S.C., Ord. 53—the accuser must make out his case
without the help of any discovery save in most exceptional cases. No
one has ever doubted the justice of those proceedings. Now let us take
the same accusation against a public authority but made in an action
for a declaration. Does this different mode of procedure alter the justice E
of the case? Ought not the rule of discovery to be the same whichever
procedure is adopted? Then take legal professional privilege. A defendant
may have made the most self-revealing statements to his lawyer. He
may have given his whole case away to him. But justice demands
that this should not be disclosed to the other side. If the plaintiff fails
to prove his case—for want of any admission by the defendant—no in- p
justice is done to him. Even though the truth may not have been ascer­
tained, no injustice is done. In these cases all that justice requires is
that there should be a fair determination of the case whatever the real
truth may be. Likewise, when a plaintiff alleges that the defendant has
done him some wrong, but has no evidence whatever to support it. He
seeks to obtain it by making a " fishing expedition." He asks to see all
the documents of the other side so as to see if he can get some evidence G
out of them. The court invariably refuses. It refuses because "justice "
requires that he should have some material to go upon before he goes
'a'fishing.
So I hold that when we speak of the due administration of justice
this does not always mean ascertaining the truth of what happened. It
often means that, as a matter of justice, a party must prove his case pj
without any help from the. other side. He must do it without discovery
and without putting the other side into the witness box to answer
questions.

11. Applied to this case

I start with the certificate. It gives clear and cogent reasons for keeping
these documents secret. It is because of the public interest in the proper
 The Weekly Law Reports, March 25, 1983
511
2 W.L.R. Air Canada v. Sec. of State for Trade (C.A.) Lord Denning M.R,
A functioning of the public service, that is, the executive arm of government;
I see no reason whatever for overriding the certificate. It is not necessary
in the interest of the due administration of justice. If the airlines have,
sufficient evidence to warrant their charges against the minister, they are in
a strong position. They can put forward their evidence and he will be in,
much difficulty in refuting it. He cannot himself refer to these documents
nor can he give oral evidence about them or the conversations they record.
But if the airlines have no, or no sufficient, evidence to warrant their
charges against the minister, then they ought in justice to lose their case.
They should not be permitted to rove through these documents in order
to see if they can discover something. The sight of them is not necessary
for fairly disposing of the matter. The airlines would be on a " fishing
expedition." They would be hoping to catch a fish when none were rising
C to the fly. A forlorn hope as allfishermenknow. If they have a grievance,
but no evidence, they should get some Member of Parliament to raise it in
the House and move for papers. It is not a matter for the courts of law.

12. Inspection
Both in Conway v. Rimmer [19.68] A.C. 910 and in Burmah Oil Co.
jy Ltd. v. Governor and Company of the Bank of England [1980] A.C. 1090
the House inspected the documents. In the one they ordered production. In
the other they did not. It all depends on the certificate. If it describes docu­
ments in sufficient detail and gives the reasons with sufficient clarity, that'
should be sufficient for the judge to refuse production without more ado.
Inspection is only necessary where the certificate is lacking in detail or the
reasons are not clearly or sufficiently expressed—or the scales are very
E evenly balanced. In that case, if the judge is minded to override the
certificate and order production, he should inspect the documents before
doing so. But even so, he should give the minister an opportunity to appeal
as the judge did here. In Conway v. Rimmer [1968] A.C. 910 the House
thought that the report to the Director of Public Prosecutions was in the
balance. In Burmah Oil Co. Ltd. v. Governor and Company of the Bank
F of England [1980] A.C. 1090 the majority of their Lordships felt that they
could not adequately perform the balancing exercise without inspecting the
documents. In the present case I feel no doubt. I see no need for any
inspection. The certificates are clear and convincing. They satisfy me that
the documents in both categories A and B should not be disclosed.

13. Conclusion
I would pay tribute to the judgment of Bingham J. It is quite admirable.
He is an acknowledged authority on the subject. He was engaged in many
of the leading cases on it. So much so that I differ from him with much
hesitation. If it were only on discretion, I would have accepted his view.
But I differ because of his interpretation of the phrase the " due administra^
tion of justice." He has interpreted it as meaning " eliciting the true facts,"
H whereas I interpret it as meaning the "just decision of the case," Those
documents in categories A and B are not necessary for fairly disposing of
the matter. They should not be disclosed. I would allow the appeal
accordingly.

WATKINS LJ. The B.A.A. runs its vast undertaking at a profit. It.is
one of the few industries in the public sector which does so. It has to a
considerable extent, if not entirely so, to conduct itself as to conform tp
 The Weekly Law Reports, March 25, 1983
512
Watkins LJ. Air Canada v. Sec. of State for Trade (C.A.) [1983]
the provisions of the Airports Authority Act 1975, some of which confer A
powers on the Secretary of State designed to, in several ways, control that
conduct.
In 1979 B.A.A. decided to embark upon improving the facilities for the
world's airlines at Heathrow and elswhere. This venture was calculated to
cost something in the region of £600 million. B.A.A. had at that time
£19 million in reserve. It determined to use this reserve to meet in part
that cost and to provide the remainder from borrowings from the govern- "
ment and elsewhere. The Secretary of State refused to countenance this.
He told B.A.A. that it would have to maintain its reserves and pay the cost
of any improved facilities that it wished to provide by increasing landing
charges. So B.A.A. kept its reserves, did not borrow money and increased
its landing charges which it has an implied power to impose by 35 per cent.
The airlines strenuously object to the imposition of this substantial Q
increase and by the present action seek to test the legality of its imposition.
They maintain among other things that the interference by the Secretary
of State with B.A.A.'s proposed method of meeting the cost of improved
facilities was unlawful. They say, and he denies, that he imposed a financial
target upon the B.A.A. when he had no power, discretionary or otherwise,
to do so. Furthermore, in placing an embargo on borrowing, he was moved
to do that by the then prevailing government economic policy, which was D
of general application in the public sector, whereas he should have confined
himself strictly within the obligations and duties arising out of the Act of
1975. Use of such power was ultra vires and, so they say further, assuming
he exercised any kind of discretion in the use of it, he exercised it wrongly,
that is, out of accord with what has become known as the " Wednesbury "
rule: see Associated Provincial Picture Houses Ltd. v. Wednesbury Cor- g
poration [1948] 1 K.B. 223. The Secretary of State denies these allega­
tions also. This has been called the constitutional case. There are
others which divide the parties, namely, the economic, the community—
B.A.A. is said to be in breach of the European Economic Community
Treaty—and the feather bedding cases, but with these we are not concerned.
I say no more of the origins of and the issues arising out of this
action, seeing that Lord Denning M.R. has already explained them in F
considerable and necessary detail. Needless to say we are appealed to
against Bingham J.'s decision, which is challenged by the Secretary of
State, to order production by him of public documents, the nature of
which has been amply disclosed. The judge has called this a provisional
order because it is subject to his prior inspection of these documents.
The Secretary of State claims public interest immunity in respect of Q
them and, through certificates placed before the court on his behalf, has
explained his reasons why none of the documents in contention should be
produced for any purpose in relation to the constitutional issue which alone
has prompted the plaintiffs to seek discovery of them. The airlines accept
that the claim for public interest immunity has been validly made but
contend that, in the interests of the due administration of justice, they have
a superior overriding claim to discovery of the documents, irrespective of H
whether they assist them. They have already had discovery of relevant
documents which passed between the Secretary of State and B.A.A. That
does not satisfy them. They want to enter and roam about the cloisters of
the Department of Trade and thereafter proceed to as far as the Cabinet
Office. It is to this which the Secretary of State, not surprisingly, objects. It
is plain, as the judge found, that the documents they want to see have passed
to and fro at a very high level of government. I do not think there can
 The Weekly Law Reports, March 25, 1983
513
2 W.L.R. Air Canada v. Sec. of State for Trade (CA.) Watkins LJ.
A be any doubt that, having regard also to certificates which were not before
the judge, but which we received, the Secretary of State has made a formid­
able claim for immunity which cannot be easily overridden in litigation of
this kind. Nevertheless, the judge regarded the airlines' claim as superior
and asserted that he was not concerned about which side, if any, discovery
might assist. The concern of the court, he said, was with the ascertainment
of the truth because its final decision should be grounded on a sure founda-
B tion of fact. I must confess to having found this approach to discovery,
however morally impeccable and desirable the purpose of it may appear
to be, novel in my experience in the adversarial scene in this kind of litiga­
tion. Lord Denning M.R. has commented upon it. I agree, generally
speaking, with what he has said rand therefore shall say only a little more
about it later on. So I pass to another consideration strenuously argued
Q before us.
In assessing the merits of the competing claims for and against discovery
the judge conducted a balancing exercise. He brought a judicial discretion
to bear upon the formulation of his decision which is not lightly to be set
aside.
In Burmah Oil Co. Ltd. v. Governor and Company of the Bank of
England [1980] A.C. 1090, 1113-1114, Lord Wilberforce said:
" I am therefore quite prepared to deal with this case on the basis
that the courts may, in a suitable case, decide that a high level govern­
mental public interest must give way to the interests of the administra­
tion of justice. But it must be clear what this involves. A claim for
public interest immunity having been made, on manifestly solid
grounds, it is necessary for those who seek to overcome it to demon-
E strate the existence of a counteracting interest calling for disclosure of
particular documents. When this is demonstrated, but only then, may
the court proceed to a balancing process. In Conway v. Rimmer
[1968] A.C. 910 itself it was known that there were in existence
probationary reports on the plaintiff as to which an obviously strong
argument could be made that their disclosure was necessary if the
F plaintiff's claim were to have any hope of succeeding (in the end they
turned out to be far from helpful to him): so the court had something
very definite to go upon which it could put into the scales against the
(minor) public interest of not revealing routine reports."
He went on to say, when referring to inspection of documents, at p. 1117:
Q "As to principle, I cannot think that it is desirable that the courts
should assume the task of inspection except in rare instances where a
strong positive case is made out, certainly not upon a bare unsupported
assertion by the party seeking production that something to help him
may be found, or upon some unsupported—viz., speculative—hunch
of its own. In the first place it is necessary to draw a reasonably clear
line between the responsibility of ministers on the one hand, and those
H of the courts on the other. Each has its proper contribution to make
towards solution of the problem where the public interest lies—judicial
review is not a ' bonum in se' it is a part—and a valuable one—of
democratic government in which other responsibilities coexist. Exist­
ing cases, from Conway v. Rimmer [1968] A.C. 910 onwards, have
drawn this line carefully and suitably. It is for the minister to define
the public interest and the grounds on which he considers that pro­
duction would affect it. Similarly, the court, responsible for the
VOL. 2 23
 The Weekly Law Reports, March 25, 1983
514
Watkins LJ. Air Canada v. Sec. of State for Trade (CA.) [1983]
administration of justice, should, before it decides that the minister's A
view must give way, have something positive or identifiable to put into
the scales. To override the minister's opinion by ' amorphous' phrases,
or unsupported contentions, would be to do precisely what the courts
will not countenance in the actions of ministers."
Lord Wilberforce was in the minority but he said nothing in the fore­
going valuable quotations from his speech upon the subject of the balancing B
of interests, whether discovery generally or inspection of documents is being
regarded, which does not, I think, find universal acceptance.
The airlines' arguments here for disclosure of the material documents
when put under the microscope of critical examination seem to me to be
very threadbare. They have not, I think, pointed to any one of these
documents successfully contending that it is likely to assist their case. Q
Their cri de coeur is " who knows what we may find if we are given
the opportunity to search where we should like to." They really do, in
my judgment, fall into the category of he who makes " a bare unsupport-
able assertion by the party seeking production that something to help him
may be found or upon some unsupported, namely, speculative hunch of
his own." They have produced nothing, in my view, positive or identifiable
to put in the scales. At an early stage in the argument I ventured to D
suggest that they had embarked upon a " fishing expedition." The more
I heard and have read and thought about their claim since then, the
more firmly entrenched I have become in that view.
In Compagnie Financiere et Commerciale Du Pacifique v. Peruvian
Guano Co. (1882) 11 Q.B.D. 55, Brett L.J., in regard to the contents of
an affidavit of documents, stated, at p. 63: E
" It seems to me that every document relates to the matters in ques­
tion in the action, which not only would be evidence upon any issue,
but also which, it is reasonable to suppose, contains information which
may—not which must—either directly or indirectly enable the party
requiring the affidavit either to advance his own case or to damage the
case of his adversary. I have put in the words ' either directly or p
indirectly,' because, as it seems to me, a document can properly be
said to contain information which may enable the party requiring the
affidavit either to advance his own case or to damage the case of
his adversary, if it is a document which may fairly lead him to a
train of inquiry, which may have either of these two consequences."
It is not suggested here that the Secretary of State has presented the Q
airlines with other than a frank and full list of documents of the nature
they have been requested to produce. But when consideration is given to
their claim to overbear the Secretary of State's abjection to produce them
it seems to me that the airlines have come nowhere near establishing that
there is any document in the list which may directly or indirectly enable
them to either advance their case or damage that of the defendants or to
put them on to further useful inquiry. I observe in passing that there H
is no reference in the guidance provided by Brett L.J. either to the need
for or the court's concern for ascertaining the truth in litigation. The
emphasis is, as I see it, upon the gaining of assistance to improve the chance
of discharging the burden of proof which almost exclusively if not entirely
lies upon a plaintiff to prove his case. Discovery to this end can only be
obtained in accordance with the rules of court.
If the judge, as I think with respect he did not and should have done,
 The Weekly Law Reports, March 25, 1983
515
2 W.L.R. Air Canada v. Sec. of State for Trade (CA.) Watkins LJ.
A had regarded his task of balancing the interests along the lines I have been
indicating, I think he would have come to a different conclusion.
Accordingly, he, in my opinion, exercised his discretion wrongly. It is,
therefore, unnecessary to proceed to examine in these circumstances his
somewhat perilous decision to inspect the documents by, for example,
posing rhetorically such a question as, for example, " Supposing he had
upon inspection found that the documents assisted the defendants and
B
positively damaged the plaintiffs, would he then, against the defendants'
will, have ordered them to be produced? " However, these and other
interesting questions arising from the difficulties which confront a court
when inspecting documents must lie in Umbo in this appeal.
Finally, I wish to say that I am much persuaded by Mr. Simon Brown's
argument that the constitutional case can satisfactorily and properly be
C examined and determined by the court upon the documents already pro­
duced which passed between the Secretary of State and the B.A.A. It
seems to me that whether there has been an abuse of power by the
Secretary of State will either emerge directly or by inference from those
documents or not at all. If that be right there is nothing to be gained for
the airlines by their having a speculative look at papers from a higher
level. They are not necessary for the due administration of justice and
^ as such are more than likely to be surplusage and irrelevant.
For these reasons and for those provided by Lord Denning MR. I,
too, would allow this appeal.
Fox L.J. This appeal is concerned with the production of documents
relating to very high levels of government. They are, to an important
E extent, what the judge called the " working papers " of ministers of both
the present and the previous governments. The documents are of two
categories. Category A consists of communications between, to and from
ministers (including personal secretaries on their behalf), minutes, briefs
and other documents for ministers and memoranda of meetings attended
by them.
These documents relate to (a) the formulation of policy of the previous
F government in relation to the policy of the B.A.A. and the exercise of the
Secretary of State's powers relating to borrowing under the Airports
Authority Act 1975 having regard to that government's policy of trying to
limit public sector borrowing; (b) the formulation of the policy of the
present government regarding the limitation of public sector borrowing
with particular reference to the exercise of the Secretary of State's powers
Q to control the B.A.A.'s borrowing and the effect of the authority's plans
for capital expenditure; (c) the formulation of the policy of the present
government regarding the authority's proposals for landing fees for
1980/1981; (d) the formulation of the policy of the present government in
the light of representation by Members of Parliament and various airlines
using Heathrow.
The category B documents consist of communications between, to and
H from senior officials of various departments of state, memoranda of meet­
ings of such officials and drafts prepared by them, all of which relate to
the formulation of one or more aspects of the policy to which I have
referred in relation to category A.
The category A and B documents are those to which the judgment of
Bingham J. relates. Since the judgment, certain further documents, which
I will call " the Cabinet documents," have come to light which are specified
in the certificate made by Sir Robert Armstrong on June 23, 1982, a
 The Weekly Law Reports, March 25, 1983
516
Fox L J . Air Canada v. Sec. of State for Trade (CA.) [1983]
few days before the hearing of this appeal began. These documents are A
six in number. Two are papers submitted to a Cabinet committee and the
third an extract from a minute of that committee. The others are a paper
submitted to the Cabinet, a note of the Cabinet's discussion regarding the
Cabinet's decision on that paper and a letter from the Chief Secretary
to the Treasury to the Secretary of State for Energy which was copied to
members of the Cabinet committee which I have mentioned as it dealt
with the subject matter of their discussion. As I understand it, the B
airline's counsel, though without formal instructions on the matter, was not
disposed to press for disclosure of the Cabinet documents. It is, therefore,
the category A and B documents with which we are concerned.
It is not in dispute that the certificates, claiming immunity, which have
been tendered on behalf of the Crown, constitute valid claims for immunity
on recognised grounds. Q
Under the general principles established in Conway v. Rimmer [1968]
A.C. 910 and Burmah Oil Co. Ltd. v. Governor and Company of the
Bank of England [1980] A.C. 1090, the court having been satisfied that
the Crown has made a valid claim for immunity, the next question is
whether the party seeking disclosure has shown that the disclosure of the
documents is, in the language of R.S.C., Ord. 24, r. 13 (1), " necessary . . . for
disposing fairly of the cause or matter." If the court is satisfied on those D
points, it must then consider the relative substance of the competing
claims for disclosure and non-disclosure. There is a public interest in
each—that is to say in the due administration of justice and in the
preservation of the confidentiality of the documents in question.
There are passages in the speeches in the House of Lords in Conway v.
Rimmer [1968] A.C. 910 which suggest that, with documents of the level £
of those with which the present case is concerned, no considerations
relating to the administration of justice will prevail against the public
interest in preventing disclosure. Thus Lord Reid said, at p. 952:
" I do not doubt that there are certain classes of documents which
ought not to be disclosed whatever their content may be. Virtually
everyone agrees that Cabinet minutes and the like ought not to be p
disclosed until such time as they are only of historical interest. But
I do not think that many people would give as the reason that
premature disclosure would prevent candour in the Cabinet. To my
mind the most important reason is that such disclosure would create
or fan ill-informed or captious public or political criticism . . . And
that must, in my view, also apply to all documents concerned with
policy making within departments including, it may be, minutes and G
the like by quite junior officials and correspondence with outside
bodies."
Lord Pearce said, at p. 987:
" Obviously production would never be ordered of fairly wide classes
of documents at a high level. To take an extreme case, production
would never be ordered of Cabinet correspondence, letters or reports "
on appointments to office of importance and the like."
And Lord Upjohn said, at p. 993:
" No doubt there are many cases in which documents by their very
nature fall in a class which require protection such as, only by way
of example, Cabinet papers, Foreign Office dispatches, the security of
the state, high level interdepartmental minutes and correspondence "
 The Weekly Law Reports, March 25, 1983
517
2 W.LJt. Air Canada v. Sec. of State for Trade (C.A.) Fox LJ.
A But Burmah Oil Co. Ltd. v. Governor and Company of the Bank of
England [1980] A.C. 1090 represents, perhaps, a more flexible approach:
see the speeches of Lord Keith of Kinkel at pp. 1133-4 and Lord Scarman
at p. 1144. And Lord Wilberforce at p. 1113, after observing that
" It may well be arguable whether, when one is faced with a claim
for immunity from production on ' public interest' grounds, and when
D the relevant public interest is shown to be of a high, or the highest,
level of importance, that fact is of itself conclusive, and nothing which
relates to the interest in the administration of justice can prevail
against it," went on to say that he was quite prepared to deal with the
case " on the basis that the courts may, in a suitable case, decide that
a high level governmental public interest must give way to the interests
of the administration of justice."
I will, for present purposes, assume the same basis.
Now, in dealing with the question whether the airlines have demon­
strated that the production of the documents is necessary for disposing
fairly of the case or, put another way, for the due administration of justice,
there is a fundamental difference of approach between the airlines and
the Secretary of State. The airlines say that documents are necessary for
the due administration of justice if they are material in the sense that they
are likely to affect the decision upon those issues irrespective of whether
they are helpful or unhelpful to the party seeking production. The
Secretary of State, on the other hand, says that the party seeking produc­
tion must show that the documents are likely to assist his case. The judge
accepted the airlines' contention. " Justice," he said, " is as greatly
E affronted where a plaintiff is wrongly awarded relief as where he is wrongly
denied it." That, in a broad sense, is true but, in relation to individual
cases, it depends on what is meant by " wrongly." The issue here is
whether disclosure is necessary for disposing fairly of the case. If a
document supports the defendant's case and he lawfully chooses not to
produce it, there is no affront to justice and no unfairness though it may
cause him to lose a case which he could otherwise have won. To that
F extent, the result may be said to be " wrong." But the defendant has had
his chance and he has chosen to place some other consideration above his
interest in winning the action. The law does, in many cases, accept that
material facts may be withheld from the scrutiny of the court. The mere
existence of a law of privilege postulates that. And there are cases where
a party to litigation decides, for reasons of delicacy or humanity, not to
Q call a witness whose evidence is highly material to his case. In an adver­
sarial system, that is acceptable. The logic of the airlines' contention,
on the other hand, seems to result in this, that the more a document
is likely to help the Secretary of State's case, the more likely he is to be
compelled to produce it or to submit to judgment. The alternative is that
if, upon inspection, a document is found wholly to support the case of the
party resisting discovery, he need not produce it. But, if that be so, then
H the idea of an even-handed inquiry to ascertain the true facts cannot
really stand. In the circumstances, I do not feel able to accept the judge's
approach on this point. What, then, should be the approach of the court?
As a preliminary to the consideration of that, I should refer to the nature
of the airlines' claim on the constitutional case, with which alone the present
issue is concerned. There are, as the judge found, three threads in that.
The first is that the Secretary of State imposed a financial target upon the
B.A.A. All communications between the minister and the authority have,
 The Weekly Law Reports, March 25, 1983
518
Fox LJ. Air Canada v. Sec. of State for Trade (CA.) [1983]
however, been disclosed and I agree with the judge that it is unlikely that ^
internal ministry documents would be material.
The second point is that the Secretary of State exercised his powers
for purposes other than those for which they were given to him. The
third thread, which is very similar to the second, is that the Secretary of
State both took into account considerations which he ought not to have
done and failed to take into account considerations which he should have
considered. The judge decided that the category A documents, which &
are at ministerial rather than merely departmental level, but not the
category B documents, were likely to affect the outcome one way or
another. He distinguished the category A documents from the category B
documents on the basis that it was the minister's thinking that was crucial.
Accordingly, the judge decided that, thus far, a public interest was demon­
strated in the production of the category A documents, but that he should Q
inspect them before ordering disclosure.
The judge's conclusion was, of course, based upon the approach which
I have already mentioned and with which I do not agree. The judge
stated that, if it were necessary for the airlines to show a likelihood
that the documents, if produced, would help them, he could not, on the
material available, conclude that they had done so. I agree with that,
both in relation to the category A and the category B documents. The ^
documents might help the airlines-er-they might not. It is guesswork.
What, then, is the court to do? Here are documents which are admittedly
relevant and which might possibly contain material of consequence to the
resolution of the airlines' constitutional claim. Should the court look at
them to see if they are of assistance? In my view, the court should not.
I think that the party seeking disclosure should normally have to show g
that there is a reasonable likelihood that the documents will assist his case.
That is necessary to prevent " fishing." The mere fact that the documents
are relevant cannot be sufficient. The documents will always be relevant
in these cases, otherwise the question would not arise at all; it would not
be necessary to claim immunity. I refer on this problem to the observa­
tions of Lord Edmund-Davies in the Burmah Oil case [1980] A.C. 1090
where, after referring to a contention that the proposition that, if the F
judge is in doubt, he should inspect the documents should not apply where
a " class " claim to immunity is not challenged, he said, at p. 1129:
" I see no reason why this should be so, once it is postulated that the
withheld ' class' documents are ' likely' to contain material sub­
stantially useful to the party seeking discovery. That qualification
is necessary, for what is no more than a ' fishing expedition' ought G
not to be advanced by the judge's having a peep to see whether they
contain an attractive catch. But, provided such reservation is rigidly
adhered to, a judicial peep seems to be justifiable in both cases and
may, indeed, prove vital in each if the judge is to be enabled to arrive
at a just conclusion in the matter of discovery."
As I have indicated, I do not think that it can be said that is " likely " H
or that there is a " reasonable probability" that these documents will
disclose material of assistance to the airlines. All that one can say is
that it is possible that they might.
At this point I should refer to the Crown's case, as disclosed in the
certificates, for immunity. Broadly, it is this. All the documents in both
categories relate to the formulation of government policy at a high level
involving matters of major economic importance to the United Kingdom.
 The Weekly Law Reports, March 25, 1983
519
2 W.L.R. Air Canada v. Sec. of State for Trade (C.A.) Fox LJ.
A The allocation of resources to the various sectors of the economy is one
of the most important of the functions of government. The documents are
in no way routine. The category A documents are intended for the
guidance of or record the views of the Secretary of State for Trade, the
Chancellor of the Exchequer, the Chief Secretary to the Treasury, and
the Secretary of State for Industry. The Secretary of the Cabinet, Sir
Robert Armstrong, states that many of the category A documents came
B into existence for the purpose either of preparing ministers for meetings
of the Cabinet or developing in detail decisions reached at Cabinet
meetings or meetings of Cabinet committees. In his opinion, the dis­
closure of such documents would gravely prejudice the confidentiality
of the decision making process of the Cabinet and its committees. The
category B documents, though passing at a lower level, all relate to policy
£ decisions to be taken at a higher level. Inevitably, decisions taken by
ministers have to be preceded by discussions within and between depart­
ments. The policy considerations underlying the documents remain of
topical significance " since the events giving rise to the actions took place
recently and the question of landing fees at Heathrow is still a matter of
active governmental consideration " : see Sir Kenneth Clucas' certificate
of June 26, 1981. Sir Robert Armstrong in his certificate of June 23,
D 1982, states that the question of landing fees at Heathrow continues to be
a sensitive issue. The general ground of public interest upon which the
claim for immunity is made is that set out in the passage from the speech
of Lord Reid in Conway v. Rimmer [1968] A.C. 910, 952, to which I
have already referred.
It seems to me that the Crown makes out a very strong case that,
£ in the interests of the proper functioning of government and the public
service, the confidentiality of these documents should be preserved. Cabinet
papers apart, it is difficult to imagine a much stronger case in respect of
" class " documents. Accepting that such public interest may be over­
ridden by the public interest in the administration of justice, I do not
think that the airlines have demonstrated the existence of such an interest
here. I am not satisfied that the documents are likely to assist the airlines'
F case or that a case for inspection is made out. Nor, in general, does it
seem to me that the interests of justice are likely to be interferred with
by refusing disclosure. The issue, substantially, is whether the airlines
can establish that the Secretary of State took into account the wrong
considerations or acted for the wrong purpose so that his decision is
assailable under the principles of Associated Provincial Picture Houses
Q Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223. It is not in dis­
pute that the matter can properly be raised in this action, but it is the
sort of issue which would normally be raised in an application under
R.S.C., Ord. 53 upon which discovery would not, in most cases, be
ordered. If the complainant made out a prima facie case, either the
minister would have to disclose his documents in order to meet it or
submit to an order. Similarly here. The Secretary of State has made
H it clear during the argument that he does not intend to call any evidence
on this part of the action. Consistently with his view as to the public
interest in preserving the confidentiality of the ministerial discussions
he cannot do so. He intends merely to assert that the airlines' evidence
shows no prima facie case entitling them to relief. Either the airlines
can show a prima facie case or they cannot. If they can they should
succeed. If they cannot, I do not think that, in such a case as the
present, where a very strong argument for immunity is made out, the
 The Weekly Law Reports, March 25, 1983
520
Fox LJ. Air Canada v. Sec. of State for Trade (CA.) [1983]
public interest requires that the court should search the Crown's documents A
on the chance that something might be found to assist the airlines' case.
In short, I think that the Crown show a substantial public interest in
preserving the confidentiality of the documents and no sufficient public
interest in disclosure or inspection with a view to disclosure has been
demonstrated. I would allow the appeal.

Appeal allowed with costs. "

Leave to appeal.

Solicitors: Treasury Solicitor; Slaughter & May; Freshfields.

[Reported by MRS. MARIA FLEISCHMANN, Barrister-at-Law.]

C
The airlines in the first action (" the plaintiffs") appealed to the
House of Lords.
Samuel Stamler Q.C. and Michael Crystal for the plaintiffs.
Lord Mackay of Clashfern Q.C. {Lord Advocate), Simon D. Brown
and Christopher Clarke for the Secretary of State.

Their Lordships took time for consideration.

March 10. LORD FRASER OF TULLYBELTON. My Lords, this appeal

is concerned with the question of when and in what circumstances the
court should exercise its power to inspect documents which are relevant
to an action, with a view to ordering their production, when their produc- g
tion has been objected to on behalf of the Crown on the ground that they
fall within a class of documents the production of which would be injurious
to the public interest.
The appellants are a group of 18 international airlines, headed by Air
Canada, all of which operate into and out of Heathrow Airport. They
are the plaintiffs in the action. There are two respondents. One is the
British Airports Authority (" B.A.A.") a statutory body whose main func- F
tion is to own and manage several airports in the United Kingdom, including
Heathrow. Its functions are now regulated by the Airports Authority Act
1975 (" the Act of 1975 "). It is the second defendant and the second
respondent. The first defendant and first respondent is the Secretary of
State for Trade, who has under the Act of 1975 certain supervisory powers
over the B.A.A. particularly in financial matters. He is the only respondent Q
who was represented before your Lordships' House.
The plaintiffs object to the charges made by the B.A.A. for the use of
Heathrow Airport, and particularly to increases in the charges made in
November 1979 and April 1980, which they allege are excessive in amount
and discriminatory in character. All parties accept that, although the
B.A.A. has no express statutory power to charge airlines for the use of TJ
Heathrow, it has an implied power to do so. On several occasions since
1976 the B.A.A. has increased its charges at Heathrow in ways to which
the plaintiffs object, but, so far as the present appeal is concerned, the
only relevant increases are those which applied from November 1, 1979,
and April 1, 1980. The case made by the plaintiffs falls under four main
heads. The first head, with which alone this appeal is concerned, has been
called " the constitutional case." It is summarised in paragraph 22 of the
 The Weekly Law Reports, March 25, 1983
•521
2 W.L.R. Air Canada v. Sec. of State for Trade (H.L.(E.)) .Lo'«| Fr»««
of Tullybelton
A re-re-amended points of claim which includes an averment that the increases
from November 1, 1979, and/or April 1, 1980,
" were ultra vires the B.A.A. and unlawful and not imposed in the
proper exercise of its discretion under the Act of 1975 but were
substantially caused or contributed to by the ultra vires and unlawful
directions, requirements or interference of the Secretary of State whose
B dominant purpose was the implementation of non-aviation related
government policy (and particularly to achieve any reduction, whether
temporary or otherwise, in the public sector borrowing requirement)
and who at no time paid any or any sufficient regard to his own powers
and duties, the powers and duties of the B.A.A. or the international
obligations of the United Kingdom."
C These are partly averments of fact—viz., that the Secretary of State
" imposed" the increases by directions and requirements—and partly
averments of law—viz., that his directions were ultra vires and unlawful.
In relation to the factual averments a large number of documents have
been produced without objection on behalf of the Secretary of State, includ­
ing virtually all the relevant communications between the Department of
Trade and the B.A.A. These communications may well tend to show
D whether the Secretary of State imposed charges or agreed them with the
B.A.A. The averments relating to ultra vires depend partly on construction
of the Act of 1975, which will not be assisted by the production of docu­
ments, but they also raise the question of what was " the dominant
purpose " of the Secretary of State in acting as he did. The plaintiffs'
case on that briefly is that the Secretary of State had power to give financial
£ directions to the B.A.A., but only for the purposes of the Act of 1975, and
not for other purposes such as reducing the public sector borrowing require­
ment. They say that, because the Secretary of State's dominant purpose
was to reduce the public sector borrowing requirement, his directions were
ultra vires and unlawful. In order to investigate what was the Secretary of
State's dominant purpose, they wish to refer to the documents the produc­
tion of which is objected to on behalf of the Crown.
F I need not refer to the heads of the action other than the constitutional
head. The relief sought under that head, as against the Secretary of State,
is a declaration that certain specified acts of his were ultra vires and
unlawful. The reliefs sought under the first head as against the B.A.A.
include declarations that its user charges since November 1, 1979, and/or
April 1, 1980, were ultra vires and unlawful; injunctions restraining the
Q B.A.A. from imposing those charges on the plaintiffs; and a declaration
that the plaintiffs are entitled to repayment of the charges in whole or in
part. Relief is sought against both respondents in this action, and the
learned judge (Bingham J.) held that, in the circumstances, procedure by
way of action was more appropriate than the procedure under R.S.C.,
Ord. 53, which would have been available against the first respondent.
His view on that point has not been challenged.
H The Treasury Solicitor on behalf of the Secretary of State served on the
plaintiffs a list of documents, but he objected to production of certain of
the documents in the list. The objection was supported by a certificate
dated June 26, 1981, by Sir Kenneth Clucas, K.C.B., the then Permanent
Secretary to the Department of Trade, claiming immunity for two categories
of documents in the list. Category A consist of approximately 100 docu­
ments being communications between, to and from ministers (including
ministers' personal secretaries acting on behalf of ministers) and minutes
 The Weekly Law Reports, March 25, 1983
522
L r
? ? !f'!"f Air Canada v. Sec. of State for Trade (H.L.(E.)) [1983]
of lullybclton
and briefs for ministers, other documents considered by ministers, drafts A
for consideration by ministers and memoranda of meetings attended by
ministers. The certificate explained that all these documents relate to
" (a) The formulation of the policy of the previous government in
relation to the early consideration of the policy of the B.A.A. com­
mencing in 1977 . . . (b) In relation to (sic) formulation of the policy
of the present government regarding the limitation of borrowing by g
the public sector with particular regard to the exercise of the Secretary
of State's powers to control the B.A.A.'s borrowing and the effect of
B.A.A.'s plans for substantial capital expenditure, (c) In relation to
formulation of the policy to be adopted by the present government
towards the B.A.A.'s proposals for landing fees for 1980-81. . . (d) In
relation to formulation of the policy to be adopted by the present
government in view of representations by Members of Parliament and C
the various airlines using London Heathrow Airport and their repre­
sentatives.
" Category B. These consist of communications between, to and
from senior officials of the Department of Trade, of the Treasury, of
the Foreign and Commonwealth Office and of the Departments of
Energy, Industry and Transport . . . relating to the formulation of one J-J
or more aspects of the policy described in category A."
The certificate further provided, inter alia:
" It is, in my opinion, necessary for the proper functioning of the public
service that the documents in category A and category B should be
withheld from production. They are all documents falling within the
class of documents relating to the formulation of government policy. £
Such policy was decided at a high level, involving as it did matters
of major economic importance to the United Kingdom. The documents
in question cannot properly be described as routine documents. . . ."
The certificate explains further the reasons for objection on lines very
similar to the certificate referred to in Burmah Oil Co. Ltd. v. Governor
and Company of the Bank of England [1980] A.C. 1090. It was F
accepted on behalf of the appellants that the objections were valid,
that is to say that the certificate stated grounds which were relevant and
persuasive, and that it was in proper form. The reason why it was granted
by the Permanent Secretary and not by a minister was that some of the
documents related to formulation of the policy of the previous government
which, by constitutional practice, are not disclosed to their successors in Q
another government. A supplemental certificate was made on September
10, 1981, by Sir Kenneth Clucas in respect of a further document but
nothing turns upon it. There were further supplemental certificates by Sir
Kenneth Clucas's successor as Permanent Secretary of the Department of
Trade and by the Secretary of the Cabinet. These were made after the
decision by Bingham J. and no special point arises on them. i,
By order dated May 16, 1982, Bingham J. ordered the Secretary of
State to produce for inspection by himself (the learned judge) the documents
in category A, but not those in category B. He further directed that the
order for production should be stayed pending an appeal by the Secretary
of State for which he gave leave. The order for a stay was in accordance
with usual and proper practice in cases where documents are ordered to be
produced in spite of a claim to public interest immunity.
 The Weekly Law Reports, March 25, 1983
523
2 W.L.R. Air Canada v. Sec. of State for Trade (H.L.(E.) ) Lorf Fraser
of Tullybelton
A The Court of Appeal (Lord Denning M.R., Watkins and Fox L.JJ.)
ante, p. 499F unanimously allowed the Secretary of State's appeal from the
decision of Bingham J., so far as it ordered production of the documents,
and gave leave to appeal to your Lordships' House.
In considering the present law of England on what has come to be called
public interest immunity, in relation to the production of documents, it is
not necessary to go further back than Conway v. Rimmer [1968] A.C.
B 910 where this House decided that a certificate by a minister stating that
production of documents of a certain class would be contrary to the public
interest, was not conclusive. Lord Reid said, at p. 952:
" I would therefore propose that the House ought now to decide that
courts have and are entitled to exercise a power and duty to hold a
balance between the public interest, as expressed by a Minister, to
C withhold certain documents or other evidence, and the public interest
in ensuring the proper administration of justice."
A little further on Lord Reid went on to say:
" I do not doubt that there are certain classes of documents which
ought not to be disclosed whatever their content may be. Virtually
everyone agrees that Cabinet minutes and the like ought not to be
D disclosed until such time as they are only of historical interest."
The latter observation was strictly speaking obiter in Conway where the
documents in question were reports on a probationer police constable by
his superiors.
I do not think that even Cabinet minutes are completely immune from
disclosure in a case where, for example, the issue in a litigation involves
serious misconduct by a Cabinet Minister. Such cases have occurred in
Australia (see Sankey v. Whitlam (1978) 21 A.L.R. 505) and in the United
States (see United States v. Nixon (1974) 418 U.S. 683) but fortunately not
in the United Kingdom: see also the New Zealand case of Environmental
Defence Society Inc. v. South Pacific Aluminium Ltd. (No. 2) [1981] 1
N.Z.L.R. 153. But while Cabinet documents do not have complete
F immunity, they are entitled to a high degree of protection against disclosure.
In the present case the documents in category A do not enjoy quite the
status of Cabinet minutes, but they approach that level in that they may
disclose the reasons for Cabinet decisions and the process by which the
decisions were reached. The reasons why such documents should not
normally be disclosed until they have become of purely historical interest
were considered in Burmah Oil Co. Ltd. v. Governor and Company of the
G
Bank of England [1980] A.C. 1090, where Lord Wilberforce said this,
at p. 1112:
" One such ground is the need for candour in communication between
those concerned with policy making. It seems now rather fashionable
to decry this, but if as a ground it may at one time have been
exaggerated, it has now, in my opinion, received an excessive dose of
H cold water. I am certainly not prepared—against the view of the
minister—to discount the need, in the formation of such very contro­
versial policy as that with which we are here involved, for frank and
uninhibited advice from the bank to the government, from and between
civil servants and between ministers. . . . Another such ground is to
protect from inspection by possible critics the inner working of govern­
ment while forming important governmental policy. I do not believe
that scepticism has invaded this, or that it is for the courts to assume
 The Weekly Law Reports, March 25, 1983
524
A rC a n a d a v
of° TuuJbeKon ' - S e c -o f State f o rT r a d e
(H.L.(E.) ) [1983]
the role of advocates for open government. If, as I believe, this is a A
valid ground for protection, it must continue to operate beyond the
time span of a particular episode. Concretely, to reveal what advice
was then sought and given and the mechanism for seeking and con­
sidering such advice, might well make the process of government more
difficult now. On this point too I am certainly not prepared to be
wiser than the minister." g
Although Lord Wilberforce dissented from the majority as to the result in
that case, I do not think that his statement of the reasons for supporting
public interest immunity were in any way in conflict with the views of the
majority.
In the present case, then, we have documents which are admittedly
relevant to the matters in issue, in the sense explained in Compagnie Q
Financiere et Commerciale du Pacifique v. Peruvian Guano Co. (1882) 11
Q.B.D. 55, 63, per Brett L.J. I am willing to assume that they are, in the
words of R.S.C., Ord. 24, r. 13 (1), " necessary . . . for disposing fairly of the
cause " on the (perhaps not very rigorous) standard which would apply if
this were an ordinary case in which public interest immunity had not been
claimed. But it has been claimed, and the onus therefore is on the plaintiffs,
as the parties seeking disclosure, to show why the documents ought to be D
produced for inspection by the court privately. The question of whether
the court, having inspected them privately, should order them to be pro­
duced publicly is a separate question which does not arise at this stage,
although as I shall seek to show in a moment it is in my opinion relevant.
Mr. Stamler, who appeared for the plaintiffs, submitted a persuasive
argument to the effect that no harm could be done by a judge inspecting £
the documents in private, and that, as they might be of determinative
importance in the decision of the action, the judge should " take a peep "
as my noble and learned friend Lord Edmund-Davies put it in Burmah Oil
Co. Ltd. v. Governor and Company of the Bank of England [1980] A.C.
1090, 1129D. Mr. Stamler submitted that when the question was whether
the court should inspect the documents in private, the parties seeking dis­
closure only had to show that the documents were likely to be " very F
significant" for decision of the case without regard to whether they were
likely to assist him or his opponent. But he accepted that when the judge,
having inspected the documents, came to the later question of whether to
order them to be produced, the question was different and it then became
relevant to consider whether disclosure would assist the party seeking it.
We were referred to some observations in reported cases to the effect Q
that the court should have all relevant information before it whichever party
it might help: see for example Alfred Crompton Amusement Machines
Ltd. v. Customs and Excise Commissioners (No. 2) [1974] A.C. 405, 434D,
per Lord Cross of Chelsea. As a general rule that is, of course, true, but it
is subject to some qualification. The very existence of legal professional
privilege and of public interest immunity constitutes qualification. The
importance of the general rule was emphasised by all the noble and learned H
lords who delivered reasoned speeches in D. v. National Society for the
Prevention of Cruelty to Children [1978] A.C. 171 but none of them was
considering the present question, nor the difference between the inspection
stage and the production stage. Nor was any of them contemplating the
possibility of a person being compelled to disclose information in his own
favour which he preferred to keep private. In an adversarial system such as
exists in the United Kingdom, a party is free to withhold information that
 The Weekly Law Reports, March 25, 1983
525
2 W.LJt. Air Canada v. Sec. of State for Trade (H.L.(E.)) Lj?'* F ™ «
of Tullybelton
A would help his case if he wishes—perhaps for reasons of delicacy or per­
sonal privacy. He cannot be compelled to disclose it against his will. It
follows in my opinion that a party who seeks to compel his opponent, or
an independent person, to disclose information must show that the informa­
tion is likely to help his own case. It would be illogical to apply a different
rule at the stage of inspection from that which applies at the stage of
production. After all, the purpose of inspection by the court in many cases,
B including the present, would be to let the court see whether there is material
in favour of disclosure which should be put in the scales to weigh against
the material in favour of immunity. Inspection is with a view to the
possibility of ordering production, and in my opinion inspection ought not
to be ordered unless the court is persuaded that inspection is likely to
satisfy it that it ought to take the further step of ordering production.
Q A great variety of expressions has been used in the reported cases to
explain the considerations that ought to influence judges in deciding
whether to order inspection. In Conway v. Rimmer [1968] A.C. 910,
953, Lord Reid said if the judge
" decides that on balance the documents probably ought to be pro­
duced, I think that it would generally be best that he should see them
before ordering production and if he thinks that the minister's reasons
" are not clearly expressed he will have to see the documents before
ordering production."
(The latter point does not arise in this appeal, because the reasons why the
documents ought not to be produced are clearly and fully expressed in
Sir Kenneth Clucas's certificate.) In the same case Lord Morris of Borth-y-
Gest, at p. 964D, said that there was no reason why there should not be a
E private examination of a document by a court " if such an examination
becomes really necessary " and later, at p. 971D, he said that the power to
examine documents privately was one which should be " sparingly exer­
cised." In Burmah Oil Co. Ltd. v. Governor and Company of the Bank
of England [1980] A.C. 1090, 1117, Lord Wilberforce said that it was not
desirable for the court to assume the task of inspection
F " except in rare instances where a strong positive case is made out,
certainly not upon a bare unsupported assertion by the party seeking
production that something to help him may be found, or upon some
unsupported—viz., speculative—hunch of its own."
Of all the formulations I have seen, that is, I think, the one least favourable
to inspection. Lord Edmund-Da vies in the Burmah Oil case, at p. 1129D,
G quoted with approval the passage I have just quoted from Lord Reid's
speech in Conway v. Rimmer [1968] A.C. 910, 953. A little lower down
p. 1129 Lord Edmund-Davies, as I understand him, expressed the view that
a judge should not hesitate to call for production of documents for his
private inspection if they are " ' likely' to contain material substantially
useful to the party seeking discovery." At p. 1135A Lord Keith of Kinkel
referred to
" situations where grave doubt arises, and the court feels that it cannot
properly decide upon which side the balance falls without privately
inspecting the documents."
And Lord Scarman said, at p. 1145:
" Inspection by the court is, I accept, a power to be exercised only if
the court is in doubt, after considering the certificate, the issues in the
case and the relevance of the documents whose disclosure is sought."
 The Weekly Law Reports, March 25, 1983
526
Lord Fraser Air Canada v. Sec. of State for Trade (H.L.(E.)) [1983]
of Tulljbelton \ \ r/ i J
My Lords, I do not think it would be possible to state a test in a form A
which could be applied in all cases. Circumstances vary greatly. The
weight of the public interest against disclosure will vary according to the
nature of the particular documents in question; for example, it will in
general be stronger where the documents are Cabinet papers than when
they are at a lower level. The weight of the public interest in favour of
disclosure will vary even more widely, because it depends upon the prob­
able evidential value to the party seeking disclosure of the particular ®
documents, in almost infinitely variable circumstances of individual cases.
The most that can usefully be said is that, in order to persuade the court
even to inspect documents for which public interest immunity is claimed,
the party seeking disclosure ought at least to satisfy the court that the
documents are very likely to contain material which would give sub­
stantial support to his contention on an issue which arises in the case, and c
that without them he might be " deprived of the means of . . . proper
presentation " of his case: see Glasgow Corporation v. Central Land
Board, 1956 S.C.(H.L.) 1, 18, per Lord Radcliffe. It will be plain that
that formulation has been mainly derived from the speech of my noble
and learned friend Lord Edmund-Davies in the Burmah Oil case [1980]
A.C. 1090, 1129, and from the opinion of McNeill J. in Williams v. Home
Office [1981] 1 All E.R. 1151, 1154A. It assumes, of course, that the party *->
seeking disclosure has already shown in his pleadings that he has a cause of
action, and that he has some material to support it. Otherwise he would
merely be " fishing."
The test is intended to be fairly strict. It ought to be so in any case
where a valid claim for public interest immunity has been made. Public
interest immunity is not a privilege which may be waived by the Crown g
or by any party. In Reg. v. Lewes Justices, Ex parte Secretary of State
for the Home Department [1973] A.C. 388, 400, Lord Reid said:
" There is no question of any privilege in the ordinary sense of the
word. The real question is whether the public interest requires that
the letter shall not be produced and whether that public interest is
so strong as to override the ordinary right and interest of a litigant p
that he shall be able to lay before a court of justice all relevant
evidence."
When the claim is a " class" claim judges will often not be well qualified
to estimate its strength, because they may not be fully aware of the im­
portance of the class of documents to the public administration as a whole.
Moreover, whether the claim is a " class " claim or a " contents " claim, Q
the court will have to make its decision on whether to order production,
after having inspected the documents privately, without having the assist­
ance of argument from counsel. It should therefore, in my opinion, not
be encouraged to " take a peep " just on the offchance of finding some­
thing useful. It should inspect documents only where it has definite
grounds for expecting to find material of real importance to the party
seeking disclosure. H
Applying these considerations to the present appeal, I am of opinion
that the case for inspection of the category A documents by the court
has not been made out. The appeal proceeds on the basis, expressly
accepted for the purpose of the present argument by the Lord Advocate,
on behalf of the Secretary of State, that the plaintiffs have a cause of
action under the constitutional head of the case. It is abundantly clear
that they already have documents to support their case—viz., the White
 The Weekly Law Reports, March 25, 1983
527
2 W.L.R. Air Canada v. Sec. of State for Trade (H.L.(E.)) Lord Fraser
of TulIybeltOD
A Paper on The Nationalised Industries (Cmnd. 7131) published in March
1978 and a statement by the Secretary of State to the House of Commons
on February 26, 1980, Hansard (1980), vol. 979, cols. 499-500 in which
he announced that he had set a target of six per cent, per annum on net
assets revalued at current cost as a reasonable target for the B.A.A., and
referred to the White Paper. An extract from the statement is quoted in
paragraph 37 of the plaintiffs' pleadings and it is not necessary for me to
B repeat it here. The respondents admit the extract although they deny that
the six per cent, target was " imposed." (See amended points of defence,
paragraph 27.) The plaintiffs do not make any case that the Secretary of
State's true reasons were different from those which he had publicly
announced. In these circumstances it seems to me that any information
contained in the category A documents would almost certainly tend merely
Q to repeat the information already known to and relied on by the plaintiffs,
and published to the world. It is unlikely to add anything material. It is
therefore unlikely that access to category A documents would assist the
plaintiffs in proving their case. I agree with the way the matter was put
by Watkins L.J. in the Court of Appeal, when he said, ante, at p. 515c:
" It seems to me that whether there has been an abuse of power by
n the Secretary of State will either emerge directly or by inference
from those documents [sc. the documents already produced] or not
at all."
The case for inspection has therefore not been made out.
When Bingham J. decided to inspect the documents in category A, he
did so on the view that he was not concerned with the question whether
E they were likely to help the plaintiffs, but that the relevant question for
him was whether they were likely to affect the outcome of the case " one
way or the other." For the reasons I have endeavoured to explain, I
consider that that is an erroneous view, and that his exercise of discretion
is accordingly vitiated.
I would dismiss the appeal with costs.

F LORD WILBERFORCE. My Lords, my noble and learned friend, Lord

Fraser of Tullybelton, has described the background against which this
appeal must be decided: I shall not duplicate his narrative. We are con­
cerned with a claim for discovery of documents in which the parties'
respective positions are familiar and one could say ritualised. The relevant
pleas in the action (and they are only some of many) challenge the
Q validity of certain actions said to have been taken by the Secretary
of State for Trade in relation to the fixing by the B.A.A. of charges
for the use by the appellant airlines of Heathrow Airport. The
Secretary of State, it is said, has acted beyond his powers, and/or has
exercised his powers and discretion for purposes other than those for
which they were conferred—viz., (briefly) for the purpose of reducing the
government's public sector borrowing requirement. In support of these
H allegations, discovery is sought of a number of documents which, it is
claimed, might throw light on the manner in which, and the purpose for
which, the Secretary of State exercised his power or his discretion: such
documents appear to satisfy the threshold test of relevancy. The Secre­
tary of State's answer is to claim public interest immunity: certificates are
put in and signed by top-ranking civil servants (this is because the actions
of successive governments are involved and a powerful convention pre­
vents ministers having access to papers of their predecessors). I need
 The Weekly Law Reports, March 25, 1983
528
Lord Wilberforce Air Canada v. Sec. of State for Trade (H.L.(E.)) [1983]
not set these out: they are similar in form and content to those presented A.
in Burmah Oil Co. Ltd. v. Governor and Company of the Bank of
England [1980] A.C. 1090, and they make what I there called a well-
fortified case. The documents now in issue, in fact, can claim to bear a
higher degree of confidentiality than those involved in Burmah: they
relate directly to the making of decisions as to government policy in a
sensitive area, viz., the economic and financial policy of the government,
particularly in relation to nationalised industries, by ministers and civil B
servants prior to consideration in Cabinet, and familiar contentions are
put forward as to the need to protect them against disclosure in the
interest of the confidentiality of the inner working of government and of
the free and candid expression of views. It is relevant to add that it is
shown that there are in existence Cabinet papers bearing on these same
matters. These are not asked for, but their existence underlines the high Q
level status and confidentiality of those whose production is sought. It is
not, at this stage, disputed that the documents in question fall within the
class for which protection is claimed, nor that the claim for protection is
put on what is accepted to be the highest grade.
The appellants' claim for discovery and production rests, as it must,
upon their assertion that they are necessary for the disposal fairly of the
case: see R.S.C., Ord. 24, r. 13. There is a public interest, they say, in D
justice being done to their case and this public interest has to be weighed
against the contrary public interest for immunity which the Secretary of
State puts forward. As it is not known what the documents may contain,
it is not possible for this weighing process to be carried out unless they
are inspected. Consequently, and their counsel prudently confined him­
self to this contention, they ask that the court should privately inspect the g
documents, as, under the rule (Ord. 24, r. 13 (2)) it has power to do. The
judge accepted this submission, but the Court of Appeal reversed his
decision.
What then are the criteria upon which a decision should be made to
inspect, or not to do so? This matter was discussed at length in the
opinions of the House of Lords in the Burmah Oil case [1980] A.C. 1090.
The main difference of opinion between the majority and the minority F
opinions related to the likelihood, on the facts of that case, that the
documents, inspection of which was claimed, would be supportive of the
plaintiffs' case, the minority regarding this likelihood as purely speculative,
the majority as amounting to a degree (differently expressed) of prob­
ability. Leaving this difference aside as not relevant here, there are three
questions which have now to be answered. (1) What is it that the docu- Q
ments must be likely (in whatever degree) to support? (2) What is the
degree of likelihood that must be shown? (3) Is that degree of likelihood
attained?
(1) On this point there was a difference in opinion between Bingham J.
and the Court of Appeal. The learned judge held that documents would
be necessary for fairly disposing of a case or (his gloss) for the due ad­
ministration of justice, if they give substantial assistance to the court in H
determining the facts upon which the decision in the case would depend.
He considered that they were very likely to affect the outcome " one way
or the other." The Court of Appeal, on the other hand, held that there
must be a likelihood that the documents would support the case of the
party seeking discovery.
On this point I agree with the Court of Appeal. In a contest purely
between one litigant and another, such as the present, the task of the
 The Weekly Law Reports, March 25, 1983
529
2 W.LJt. Air Canada v. Sec. of State for Trade (H.L.(E.) ) Lord Wilberforce
A court is to do, and be seen to be doing, justice between the parties—a
duty reflected by the word " fairly " in the rule. There is no higher or
additional duty to ascertain some independent truth. It often happens,
from the imperfection of evidence, or the withholding of it, sometimes by
the party in whose favour it would tell if presented, that an adjudication
has to be made which is not, and is known not to be, the whole truth of
the matter: yet if the decision has been in accordance with the available
B evidence and with the law, justice will have been fairly done. It is in aid
of justice in this sense that discovery may be ordered, and it is so ordered
upon the application of one of the parties who must make out his case
for it. If he is not able to do so, that is an end of the matter. There is
no independent power in the court to say that, nevertheless, it would like
to inspect the documents, with a view to possible production, for its own
Q assistance.
So far as authority is concerned, I do not find that the cases prior to
Burmah Oil Co. Ltd. v. Governor and Company of the Bank of England
[1980] A.C. 1090 support a contrary view. Mr. Stamler was certainly
able to find a number of sentences which appeared to do so: see Conway
v. Rimmer [1968] A.C. 910, 937 (et al.), Reg. v. Lewes Justices, Ex
parte Secretary of State for the Home Department [1973] A.C. 388 (' all
D relevant evidence"), Alfred Crompton Amusement Machines Ltd. v.
Customs and Excise Commissioners (No. 2) [1974] A.C. 405 (" all the
relevant material "), D. v. National Society for the Prevention of Cruelty
to Children [1978] A.C. 171, 225 ("the truth, the whole truth, and
nothing but the truth ") et al. Statements the other way may be found
in Glasgow Corporation v. Central Land Board, 1956 S.C.(H.L.) 1. None
£ of these cases was concerned with any possible distinction between what
might assist both parties or either party and what might assist the party
seeking discovery, nor was there any discussion as to such distinction. In
Conway v. Rimmer, the documents asked for were sought by both sides,
a fact which easily explains, and indeed called for, references to assisting
either side. So I do not find the observations of assistance here. In
Burmah Oil Co. Ltd. v. Governor and Company of the Bank of England
F [1980] A.C. 1090, the opinions referred both to the interest in the ad­
ministration of justice and to the likelihood of supporting the case of the
plaintiff: see per Lord Edmund-Davies, at p. 1129, " ' likely' to contain
material substantially useful to the party seeking discovery," per Lord
Keith of Kinkel, at p. 1135H, " a reasonable probability exists of finding
. . . substantial support to the contention [of the appellants]." In that
Q case, too, the present distinction sought to be made was not relevant or
argued. We are therefore free to decide this case upon a common sense
interpretation of the rules and upon principle. This leads, in my opinion,
to the view adopted by the Court of Appeal.
(2) The degree of likelihood (of providing support for the plaintiff's
case) may be variously expressed: " likely " was the word used by Lord
Edmund-Davies in Burmah Oil: a " reasonable probability" by Lord
H Keith of Kinkel. Both expressions must mean something beyond specu­
lation, some concrete ground for belief which takes the case beyond a
mere " fishing " expedition. One cannot attain greater precision in stat­
ing what must be a matter of estimation. I would accept either formula.
(3) This must be considered in relation to the separate limbs of what
has been called " the constitutional case."
(a) There is, first, an allegation that the Secretary of State imposed a
financial target upon the B.A.A. and that he had no power to do so. This
VOL. 2 24
 The Weekly Law Reports, March 25, 1983
530
Lord Wilberforcc Air Canada v. Sec. of State for Trade (H.L.(E.)) [1983J
is in part a contention of law: factually it depends upon what was done A
by the Secretary of State, vis-a-vis the B.A.A. All documents passing
between the Secretary of State and the B.A.A., or recording any exchanges
between them, have been disclosed and no claim for immunity made for
them; so the discovery requested of internal documents is unlikely to assist.
The learned judge so held and I agree.
(b) There is, secondly, the allegation that the Secretary of State took
" irrelevant" considerations into account in that his dominant purpose '■
was to contain the public sector borrowing requirement and to imple­
ment government policy in accordance with a White Paper. As to this
allegation, there is available the White Paper on The Nationalised Industries
(Cmnd. 7131), there is also available the text of the statement made by
the Secretary of State in the House of Commons on February 26, 1980,
and a letter dated December 13, 1979, from the Department of G
Trade to the managing director of the B.A.A. These documents
are direct and primary evidence as to the policy in fact followed
by the Secretary of State in relation to the matters complained of and
the appellants' case—this aspect of it—for good or ill, must primarily
depend upon them. By contrast, the documents of which inspection is
sought relate to the formation of this policy, as to category A by ministers
and as to category B by officials of the various interested government ™
departments. As compared with the pronouncements I have referred to,
they are of a wholly secondary character. I am unable to see that any
case, still less any convincing case, can be made for saying that, even
assuming that they are admissible at all, they would add, in any material
way, to the first hand evidence which has been provided.
(c) There is, thirdly, the allegation that the Secretary of State failed E
to take into account certain relevant considerations, viz., his own
obligations under the Civil Aviation Act 1949, the duties of the B.A.A.
under statute and common law and international obligations of the
United Kingdom. But here, too, the actions of the Secretary of State
speak for themselves. On these facts, the appellants' case, such as
it is, can be argued. I am unable to understand how documents relating
to the formation of policy can assist in proving (though it might disprove) F
negative allegations such as these. I regard it, moreover, as most un­
desirable that a party merely by alleging that his ministerial opponent
failed to take some legal consideration into account should be able, there­
by, to call for inspection, with a view to production, of confidential docu­
ments possibly bearing upon the matters which he did take into account.
In the present case, any foundation—other than, I repeat, the decision Q
itself—is wholly lacking.
As to points (b) and (c), the judgment of Bingham J. contains this
important passage:
" If it were necessary for the plaintiffs . . . to show a likelihood that
the documents, if produced, would help them I could not on the
material put before me conclude that they had done so. There.are T*
indications both ways. It would be wrong to guess."
I respectfully agree. It was only because the learned judge applied a
different test (that they would be " helpful") that he concluded for in­
spection of category A. On the correct test he would have reached the
same conclusion as the Court of Appeal and that which I have been
compelled to reach.
I would dismiss the appeal.
 The Weekly Law Reports, March 25, 1983
531
2 W.L.R. Air Canada v. Sec. of State for Trade (H.L.(E.))
A LORD EDMUND-DA VIES. My Lords, I respectfully concur in the views
expressed in the speech of my noble and learned friend, Lord Fraser of
Tullybelton, which I have had the advantage of reading in draft form.
He has set out all matters relevant to this appeal and I shall not repeat
them. I desire to do no more than to add some short observations.
The narrow issues presently calling for decision are thus set out in the
appellants' printed case:
" (i) The circumstances in which the court should examine documents
privately before deciding whether to order their production; and in
particular (ii) whether the party seeking such examination discharges
the burden of showing that documents are necessary for disposing
fairly of the cause by showing that they are likely to give the court
substantial assistance in determining the issues; or whether he must
C go further and show that they are likely to assist his own case."
My Lords, I proceed to state the obvious. Under our Supreme Court
Practice, discovery of documents between parties to an action with plead­
ings (as in the present case) is restricted to documents " relating to
matters in question in the action" (R.S.C., Ord. 24, r. 1 (1)), and no
order for their inspection by the other party or to the court may be made
D " unless the court is of opinion that the order is necessary either for dis­
posing fairly of the cause or matter or for saving costs " (r. 13 (1) ). It is
common sense that the litigant seeking an order for discovery is inter­
ested, not in abstract justice, but in gaining support for the case he is
presenting, and the sole task of the court is.to decide whether he should
get it. Applying that test, any document which, it is reasonable to.suppose,
contains information which may enable the party applying for discovery
E either to advance his own case or to damage that of his adversary, if it
is a document which may fairly lead him to a train of inquiry which may
have either of those two consequences, must be disclosed: see Compagnie
Financiere et Commerciale du Pacifique v. Peruvian Guano Co. (1882)
11 Q.B.D. 55, 63, per Brett L.J. So it was that in Glasgow Corporation
v. Central Land Board, 1956S.C.(H.L.) 1, 18, Lord Radcliffe spoke of
p the need that " a litigant who has a case to maintain should not be de­
prived of the means of its proper presentation by anything less than a
weighty public reason " and concluded, at p. 20, " Nor . . . do I feel any
clear conviction that the production of the documents sought for is in any
real sense essential to the appellants' case." (Emphasis added:) It follows
that, at every stage of interlocutory proceedings for discovery, the test to
>-, be applied is: will the material sought be such as is likely to advance the
seeker's case, either affirmatively or indirectly by weakening the case of
his opponent? To take but one more example out of many, such was
again the test applied by the Court of Appeal in Woodworth v. Conroy
[1976] Q.B. 884.
It is. accordingly insufficient for a litigant to urge that the documents
„ he seeks to inspect are relevant to the proceedings. For, although relevant,
they may be of merely vestigial importance, or they may be of importance
(great or small) only to his opponent's case. And to urge that, on prin­
ciple, justice is most likely to be done if free access is had to all relevant
documents is pointless, for it carries no weight in our adversarial system
of law.
So far, I have been speaking of legal practice and procedure in general.
But this is no run of the mill case. It falls into the special category where
 The Weekly Law Reports, March 25, 1983
532
Lord Edmund-Davies Air Canada v. Sec. of State for Trade (H.L.(E.)) [1983]
a party resists disclosing admittedly relevant material on the ground that \
the documents are of a class the production of which would be injurious
to the public interest. It is common ground in this appeal that a valid
claim for public interest immunity has been made by the respondents in
proper form. Applicable to this case, therefore, is the provision in R.S.C.,
Ord. 24, r. 15 that
" The foregoing provisions of this Order shall be without prejudice to
any rule of law which authorises or requires the withholding of any
document on the ground that the disclosure of it would be injurious
to the public interest."
And as the defendant resisting discovery is Her Majesty's Secretary of State
for Trade, a similar provision in section 28 (2) of the Crown Proceedings
Act 1947 is equally applicable. c
The principles governing discovery in such special cases as the present
were exhaustively considered by your Lordships' House in Burmah Oil
Co. Ltd. V. Governor and Company of the Bank of England [1980] A.C.
1090, and I shall not restate them. Suffice it to say that, provided that
certain conditions have been satisfied, the stage may be reached when the
court will be obliged to conduct a " balancing" exercise, consisting in
weighing (a) the public interest in the due administration of justice against D
(b) the public interest established by the claim for immunity. And it is
for the party seeking discovery to establish clearly that the scale falls
decisively in favour of (a) if he is to succeed in his quest. If he fails, even
material clearly " necessary . . . for disposing fairly of the cause of matter "
must be withheld.
In the light of the foregoing observations, I turn to consider some g
passages in the clear and helpful judgment of the learned trial judge:
(A) "In my judgment, documents are necessary for fairly disposing
of a cause or for the due administration of justice if they give substan­
tial assistance to the court in determining the facts upon which the
decision in the cause will depend . . . I conclude that some of the
documents covered by this certificate are necessary in this sense . . .
I therefore proceed on the assumption that there is a public interest F
both in production and in non-disclosure . . . Nothing that I have said
indicates that there should be a different rule where public interest
immunity is claimed and challenged than in any other case."
(B) " If it were necessary for the plaintiffs . . . to show a likelihood
that the documents, if produced, would held them, I could not on
the material put before me conclude that they had done so. There G
are indications both ways. It would be wrong to guess."
(Q " But I do not regard the chance that these documents will be
helpful as at all speculative. The strong probability is, in my judgment,
that they will be of great assistance in resolving these [second and
third] issues one way or the other, possibly even determinative."
(Emphasis added). H
In the light of those observations, the learned judge made an order
" That the Secretary of State do produce for inspection by the judge
the documents listed in category A of the certificate of the Permanent
Secretary to the Department of Trade . . . such order to be stayed
pending an appeal by the Secretary of State. Leave to appeal by the
Secretary of State...."
 The Weekly Law Reports, March 25, 1983
533
2 W.L.R. Air Canada v. Sec. of State for Trade (H.L.(E.)) Lord Edmund-Davies
A Did the learned judge adopt the right approach to the preliminary ques­
tion of whether he should make such an order? At that-stage he was
treating the case exactly as though no claim to immunity had been made;
in other words, it was being regarded simply as one governed by Ord. 24,
r. 13 (1) and (2). But, as I have sought to demonstrate, this required him
first to be satisfied that production to the plaintiffs of the withheld docu­
ments was necessary to afford them a fair opportunity of establishing the
B case they were presenting against the defendants. Yet, save on the assump­
tion that unfettered disclosure of all relevant material is always best cal­
culated to make for justice and should therefore be fostered, had the
learned judge any grounds upon which he could properly conclude that he
should privately examine the documents?
My Lords, I think his own language demonstrated that no such ground
Q existed. Passages (A) and (B) expressly revealed that his decision to take
what in Burmah Oil Co. Ltd. v. Governor and Company of the Bank of
England [1980] A.C. 1090, I described as a "peep" was based solely on
the belief that this would assist him " in determining the facts upon which
the decision in the case will depend," even though (as the learned judge
said at (C)), those facts could operate " one way or the other," i.e., for the
plaintiffs, or against them, or possibly related exclusively to the defendant's
D case.
In these circumstances I do not consider that the conditions implicit in
Ord. 24, r. 13 (1) itself were complied with. And if I am right, that in
itself involves the dismissal of this appeal. But when one further adverts to
the immunity claim, the position becomes, if anything, even clearer. It was
urged for the appellants that, when only a private inspection by the court
£ is under consideration, the test is different from that appropriate to ordering
production to the other side. The appellants distinguished between the two
stages by saying:
" At the earlier stage it is sufficient that [the judge] should be satisfied
that the documents . . . are likely to be of substantial assistance to the
court in determining the issues. It is at the second stage, when the
p judge is examining the documents, that it becomes relevant to consider
which side they help."
For the reasons I have earlier stated, in my judgment this is incorrect.
The difference between the two stages is not one of nature, but simply of
degree, expressed by Lord Reid in Conway v. Rimmer [1968] A.C. 910,
953, by saying:
" " If [the judge] decides that on balance the documents probably
ought to be produced, I think that it would generally be best that he
should see them before ordering production. . . . If on reading the
document he . . . thinks that it ought to be produced he will order its
production." (Emphasis added).
JJ It would be unbecoming of me to advert to the test I myself propounded
in Burmah Oil [1980] A.C. 1090, 1129c, save to say that I adhere to it
and that it was clearly not complied with here.
My Lords, for these reasons I concur in dismissing the appeal with costs.

LORD SCARMAN. My Lords, others of your Lordships have analysed

the issues, and narrated the facts, of this complex litigation. I shall, there­
fore, confine my speech to the narrow issue which we have to decide. The
 The Weekly Law Reports, March 25, 1983
534
Lord Scarman Air Canada v. Sec. of State for Trade (H.L.(E.)) [1983]
appeal raises an issue, not previously explored by the House, arising on the \
discovery of documents which belong to a class in respect of which the
Crown has made a powerful claim in proper form for immunity from pro­
duction in the public interest. The appeal illustrates, if illustration be
needed, that the House's decision in Conway v. Rimmer [1968] A.C. 910
was the beginning, but not the end, of a chapter in the law's development
in this branch of the law.
The issue is specific and within a small compass. The Crown having B
made its objection to production in proper form, in what circumstances
should the court inspect privately the documents before determining whether
they, or any of them, should be produced?
The court, of course, has a discretion: but the discretion must be exer­
cised in accordance with principle. The principle governing the production
of disclosed documents is embodied in R.S.C., Ord. 24, r. 13. No order Q
for the production of any documents for inspection or to the court shall be
made unless the court is of the opinion that the order is necessary either
for disposing fairly of the cause or matter or for saving costs: r. 13 (1).
And the court may inspect the document for the purpose of deciding
whether the objection to production is valid: r. 13 (2). The rule provides
a measure of protection for a party's documents irrespective of their class
or contents and independently of any privilege or immunity. While the D
existence of all documents in a party's possession or control relating to
matters in question in the action must be " discovered," that is to say
disclosed, to the other party (or parties), he is not obliged to produce them
unless the court is of the opinion that production is necessary.
It may well be that, where there is no claim of confidentiality or public
interest immunity or any objection on the ground of privilege, the courts E
follow a relaxed practice, allowing production on the basis of relevance.
This is sensible, bearing in mind the extended meaning given to relevance in
Compagnie Financiere et Commerciale du Pacifique V. Peruvian Guano Co.
(1882) 11 Q.B.D. 55. But very different considerations arise if a reasoned
objection to production is put forward. In Science Research Council v.
Nasse [1980] A.C. 1028 your Lordships' House ruled that, even where
there is no question of public interest immunity but the documents are F
confidential in character, the court should not order production unless it
thought it necessary. An objection based on public interest immunity, if
properly formulated, must carry at least as much weight as an objection
on the ground of confidentiality.
Faced with a properly formulated certificate claiming public interest
immunity, the court must first examine the gounds put forward. If it is a Q
"class" objection and the documents (as in Conway v. Rimmer [1968]
A.C. 910) are routine in character, the court may inspect so as to ascertain
the strength of the public interest in immunity and the needs of justice
before deciding whether to order production. If it is a " contents " claim,
e.g., a specific national security matter, the court will ordinarily accept the
judgment of the minister. But if it is a class claim in which the objection
on the face of the certificate is a strong one—as in this case where the H
documents are minutes and memoranda passing at a high level between
ministers and their advisers and concerned with the formulation of policy—
the court will pay great regard to the minister's view (or that of the senior
official who has signed the certificate). It will not inspect unless there is a
likelihood that the documents will be necessary for disposing fairly of the
case or saving costs. Certainly, if, like Bingham J. in this case, the court
should think that the documents might be " determinative " of the issues in
 The Weekly Law Reports, March 25, 1983
535
2 W.L.R. Air Canada v. Sec. of State for Trade (H.L.(E.)) Lord Scarman
A the action to which they relate, the court should inspect: for in such a case
there may be grave doubt as to which way the balance of public interest
falls: Burmah Oil Co. Ltd. v. Governor and Company of the Bank of
England [1980] A.C. 1090, 1134-5, 1145. But, unless the court is
satisfied on the material presented to it that the documents are likely to be
necessary for fairly disposing of the case, it will not inspect for the simple
reason that unless the likelihood exists there is nothing to set against the
" public interest in immunity from production.
The learned judge, Bingham J., correctly appreciated the principle of
the matter. He decided to inspect because he believed that the documents
in question were very likely to be " necessary for the just determination of
the second and third issues in the plaintiffs' . . . case." Here I consider
he fell into error. For the reasons given in the speech of my noble and
C learned friend, Lord Templeman, I do not think that the appellants have
been able to show that the documents whose production they are seeking
are likely to be necessary for fairly disposing of the issues in their " consti­
tutional " case. Indeed, my noble and learned friend has demonstrated
that they are unnecessary. Accordingly, for this reason, but for no other,
I would hold that the judge was wrong to decide to inspect the documents.
On all other questions I find myself in agreement with the judge. In
particular, I am persuaded by his reasoning that the public interest in the
administration of justice, which the court has to put into the balance against
the public interest immunity, is as he put it:
" In my judgment, documents are necessary for fairly disposing of a
cause or for the due administration of justice if they give substantial
assistance to the court in determining the facts upon which the decision
E in the cause will depend."
The learned judge rejected, in my view rightly, the view which has
commended itself to the Court of Appeal and to some of your Lordships
that the criterion for determining whether to inspect or not is whether the
party seeking production can establish the likelihood that the documents
will assist his case or damage that of his opponent. No doubt that is what
F he is seeking; no doubt also, it is a very relevant consideration for the
court. But it would be dangerous to elevate it into a principle of the law of
discovery. Discovery is one of the few exceptions to the adversarial charac­
ter of our legal process. It assists parties and the court to discover the truth.
By so doing, it not only helps towards a just determination: it also saves
costs. A party who discovers timeously a document fatal to his case is
Q assisted as effectively, although less to his liking, as one who discovers
the winning card; for he can save himself and others the heavy costs of
litigation. There is another important aspect of the matter. The Crown,
when it puts forward a public interest immunity objection is not claiming a
privilege but discharging a duty. The duty arises whether the document
assists or damages the Crown's case or if, as in a case to which the Crown
is not a party, it neither helps nor injures the Crown. It is not for the
H Crown but for the court to determine whether the document should be
produced. Usually, but not always, the critical factor will be whether the
party seeking production has shown the document will help him. But it may
be necessary for a fair determination or for saving costs, even if it does not.
Therefore, although it is likely to make little difference in practice, I would
think it better in principle to retain the formulation of the interests to be
balanced which Lord Reid gave us in Conway v. Rimmer [1968] A.C.
910,940:
 The Weekly Law Reports, March 25, 1983
536
Lord Scarman Air Canada v. Sec. of State for Trade (H.L.(E.)) [1983]
" I t is universally recognised that here there are two kinds of public A
interest which may clash. There is the public interest that harm shall
not be done to the nation or the public service by disclosure of certain
documents, and there is the public interest that the administration of
justice shall not be frustrated by the withholding of documents which
must be produced if justice is to be done."
And I do so for the reasons given by Lord Pearce in the same case. B
Describing the two conflicting interests, he said of the administration of
justice, at p. 987, that the judge
" can consider whether the documents in question are of much or little
weight in the litigation, whether their absence will result in a complete
or partial denial of justice to one or other of the parties or perhaps to
both, and what is the importance of the particular litigation to the C
parties and the public."
Basically, the reason for selecting the criterion of justice, irrespective of
whether it assists the party seeking production, is that the Crown may not
have regard to party advantage in deciding whether or not to object to
production on the ground of public interest immunity. It is its duty to
bring the objection, if it believes it to be sound, to the attention of the court. D
It is for the court, not the Crown, to balance the two public interests, that
of the functioning and security of the public service, which is the sphere
within which the executive has the duty to make an assessment, and that
of justice, upon which the executive is not competent to pass judgment.
For these reasons I would dismiss the appeal.

LORD TEMPLEMAN. My Lords, the plaintiff airlines ask the court to

inspect documents for which public interest immunity from disclosure has
been asserted by the Secretary of State. The airlines submit that inspec­
tion by the court is necessary to enable the court to determine whether
the public interest immunity from disclosure should prevail over the public
interest in the attainment of justice.
By section 1 (1) of the Airports Authority Act 1975 the British Air- F
ports Authority (" the B.A.A.") own and manage Heathrow and other
airports. The B.A.A.'s revenue consists largely of landing and other
charges imposed on airlines which make use of the airport facilities. By
section 2 (7) the Secretary of State may, after consultation with the
B.A.A., give to the B.A.A. directions of a general character as to the
exercise and performance by the B.A.A. of its functions in relation to Q
matters which appear to him to affect the national interest, and it shall
be the duty of the B.A.A. to give effect to any such directions. Section 4
recorded the fact that the B.A.A. were indebted to the Government in the
sum of £5i2-91 million. Section 5 authorised the Secretary of State to
control the amount of any borrowing by the B.A.A., whether temporary or
permanent, and forbade the B.A.A. in any event to incur debts which, in­
cluding the initial debt of £52-91 million, exceeded in the aggregate £125 H
million.
In a White Paper entitled The Nationalised Industries (Cmnd. 7131)
presented to Parliament in March 1978 the Government announced that
financial targets would be set for the nationalised industries. In general
each nationalised industry would be expected to cover its costs and a
reasonable rate of profit and to contain or reduce its need to borrow.
Paragraph 73 was in these terms:
 The Weekly Law Reports, April 1, 1983
537
2 W.L.R. Air Canada v. Sec. of State for Trade (H.L.(E.) ) Lord Templeman
A " The level of each financial target will be decided industry by in­
dustry. It will take account of a wide range of factors. These will
include the expected return from effective, cost conscious manage­
ment of existing and new assets; market prospects; the scope for
improved productivity and efficiency; the opportunity cost of capital;
the implications for the public sector borrowing requirement; counter-
inflation policy; and social or sectoral objectives for, e.g. the energy
B and transport industries. When the target has been settled for the
industry, the Secretary of State will announce it to Parliament. He
will indicate the main assumptions on which it is based: for example,
any particular social or sectoral objectives which the government
has set the industry, and which may have affected the level of the
target; the broad implications for the industry's pricing; and any
Q other important factors of which Parliament and the public should
know when they subsequently judge the industry's performance
against the target."
On February 26, 1980, the Secretary of State announced in the House of
Commons, Hansard (1980), vol. 979, cols. 499-500:
" I have decided that a reasonable financial duty for the B.A.A. would
D be to achieve on average a rate of return of six per cent, per annum
on net assets revalued at current cost over the three financial years
1980-81 to 1982-83. The target is related to current cost operating
profit after taking account of depreciation but before interest and tax.
This target is set in accordance with the principles given in Cmnd. 7131
and will be adjusted if necessary after the introduction of the proposed
new current cost accounting standard. It is designed to be consistent
E with the B.A.A.'s progressing towards a rate of return on their airport
operations of five per cent, in real terms on their new investment..."
By 1980 the debt of the B.A.A. to the government had increased from
£52-91 million to £62 million. The B.A.A. were minded to spend a further
£200 million in the near future and ultimately £700 million to provide for
a new terminal at Heathrow and other airport developments. Applying or
F influenced by the White Paper policy, the Secretary of State and the
Treasury instructed the B.A.A. that the B.A.A. would not be allowed to
borrow and that the B.A.A. should budget to attain their financial target
and to find money for the proposed developments by increased airport
charges and by postponing or curtailing the speed of development. The
B.A.A. reluctantly accepted the instructions of the Secretary of State and
Q with the approval of the Secretary of State increased landing charges to the
extent thought necessary to meet their financial target and otherwise to
comply with the instructions received from the Secretary of State.
The airlines argue that the B.A.A. owed the airlines a duty based on and
enforceable under domestic law, European Community law or international
law, to limit landing charges to sums which were " fair, just and reason­
able," that the B.A.A. are in breach of that duty and that it is the function
H of the court to determine on a quantum meruit basis how much should be
paid when an aeroplane lands at Heathrow. The airlines also assert that the
government, responsible for the national economy and armed with the
powers contained in the Airports Authority Act 1975, cannot lawfully
inform the B.A.A. that the country cannot afford to lend any more money
to the B.A.A. and that the B.A.A. must pay its way and earn a commercial
profit and not subsidise present air travellers at the expense of future air
travellers or at the expense of the taxpayers.
VOL. 2 25
 The Weekly Law Reports, April 1, 1983
538
Lord Templeman Air Canada v. Sec. of State for Trade (H.L.(E.)) [1983]
The nature and extent of the powers and duties of the Secretary of State A
and the B.A.A. raise issues of law. The facts relevant to those legal issues
are fully documented. The correspondence and records of discussions
between representatives of the Secretary of State and representatives of the
B.A.A. disclose the reasoned views expressed by the Secretary of State with
regard to the finances and charges of the B.A.A., and the actions which the
Secretary of State wished the B.A.A. to take. The correspondence and
records of the B.A.A. disclose the negotiations between the Secretary of "
State and the B.A.A., the actions which the B.A.A. wished to take and the
extent to which the actions eventually taken by the B.A.A. were influenced
by the Secretary of State. All the relevant documents have been disclosed
and some of them are incorporated in the pleadings. The airlines do not
suggest that the Secretary of State and the B.A.A. have concealed any of
their actions or motives. There is no doubt that the policy of the govern- Q
ment set forth in the White Paper exercised some influence over the views
of the Secretary of State and over the actions of the B.A.A., although the
extent of such influence is disputed. The airlines assert that the conduct and
motives of the Secretary of State and the B.A.A. were dictated by govern­
ment policy and result in breaches of duty by both the Secretary of State
and the B.A.A. The airlines have inspected all the documents which show
the influence of government policy on the Secretary of State and the B.A.A. "
The airlines now wish to go further. They wish to inspect privileged
documents which relate to the evolution of the policy which was accepted
by the government and set forth in the White Paper. The airlines seek to
discover the views expressed by individual ministers and civil servants when
they were evolving and agreeing the policy which was ultimately expressed
in the White Paper and which was implemented in relation to the B.A.A. g
It may be that in the evolution of policy a minister or civil servant changed
his mind or opposed the adoption of the policy or put forward views similar
to those subsequently urged by the B.A.A. or the airlines in opposition to
increased charges. But the disclosure of privileged documents relating to
evolution of government policy is not necessary to enable the airlines
to prove the extent to which that policy after it had been expressly adopted
by the government became responsible for the conduct of the Secretary of '
State and the actions of the B.A.A. The airlines did not suggest or
illustrate any fact or motive which might be hidden in the privileged docu­
ments, which might be important or significant in the present proceedings
but which were not subsequently revealed in the correspondence between
the government and the B.A.A. which has been now disclosed.
For these reasons and for the reasons given by my noble and learned Q
friend, Lord Fraser of Tullybelron, I would dismiss the appeal.
I agree with my noble and learned friend Lord Scarman for the reasons
he has deployed that the court should inspect the documents if the court
considers the disclosure of the documents may materially assist any of the
parties to the proceedings. If the plaintiff seeks discovery against the
assertion which the defendant feels under a duty to put forward of public
interest immunity, the judge may find the documents are wholly or partly H
favourable to the plaintiff's case or wholly or partly fatal to the plaintiff's
case. In either event the judge must decide whether the public interest in
maintaining the confidential nature of the document prevails over the public
interest in ensuring that justice is achieved. If the public interest in con­
fidentiality prevails the judge will decline to allow the plaintiff to see the
documents. If the judge decides in all the circumstances that the claim
for public interest immunity is not strong enough to prevail over the public
 The Weekly Law Reports, April 1, 1983
539
2 W.L.R. Air Canada v. Sec. of State for Trade (H.L.(E.)) Lord Templeman
A interest in justice, the judge will allow the plaintiff to inspect the documents.
In that case either party is free to use the documents for the purposes of
the proceedings but is not bound to do so. If both parties in their discretion
for the same or different reasons decide not to rely on the documents, the
documents will not be revealed to the public. The plaintiff who will only
have inspected the documents in order to determine whether or not to make
use of them in the proceedings will not be allowed to make use of the
B documents for any other purpose.
Appeal dismissed with costs.

Solicitors: Freshfields; Treasury Solicitor.

M. I. H.
C

[HOUSE OF LORDS]

REGINA RESPONDENT
D AND
MILLER APPELLANT

1983 Feb. 16; Lord Diplock, Lord Keith of Kinkel,

March 17 Lord Bridge of Harwich, Lord Brandon
of Oakbrook and Lord Brightman
E
Crime—Arson—Conduct of defendant—Unintentional setting fire
to mattress by falling asleep while smoking—No effort made
to extinguish fire—Damage caused to house—Whether un-
intentional act combined with intentional omission sufficient
to constitute offence—Criminal Damage Act 1971 (c. 48),
s. 1 (1) (3)
p The defendant, a vagrant, went to live in an unoccupied
house. After returning there one night he lit a cigarette and
lay down on a mattress in the room he was using. He fell
asleep before he had finished the cigarette, and it dropped
onto the mattress, setting it alight. He awoke later when the
mattress was smouldering, but did nothing to extinguish it,
and merely moved to another room. The house caught fire and
damage to the value of £800 was caused. The defendant was
Q charged with arson, contrary to section 1 (1) and (3) of the
Criminal Damage Act 1971. On his appeal against conviction,
the Court of Appeal dismissed the appeal and certified the
following question of law: "Whether the actus reus of the
offence of arson is present when a defendant accidentally starts
a fire and thereafter, intending to destroy or damage property
belonging to another or being reckless as to whether any such
property will be destroyed or damaged, fails to take any steps
H to extinguish the fire or prevent damage to such property by
that fire? "
On appeal by the defendant pursuant to leave of the House
of Lords: —
Held, dismissing the appeal, that where a defendant was
initially unaware that he had done an act that in fact set in
train events which, by the time he became aware of them,
would make it obvious to anyone who troubled to give his
mind to them that they presented a risk that property belonging
to another would be damaged, the defendant was guilty of the