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inspector's unwillingness to go into the alternative
proposals made by the objectors. Both those points
had been taken before the inspectors and reported
to the Minister.
The question before the Court arose on discovery
as to what documents the Minister should disclose
to the plaintiffs which were relevant to the action.
When the Minister made a list of the relevant
documents he said that he objected to produce in
particular three kinds on the grounds set out in his
affidavit that it would be injurious to the public
interest to produce them, because " each such docu
ment belongs to a class which it is necessary for the
proper functioning of the public service to withhold
from production ".
The documents were :—(i)
departmental briefs for the guidance of inspectors
appointed by the Minister to hold local inquiries
under section 23 ;
(2) a departmental brief for the
guidance of the inspectors appointed in relation to
the Black Country ; and (3) correspondence between
the Ministry officials and the inspectors in relation
to the Black Country inquiry.
Denning M. R. Referred to his judgment in the
Grosvenor Hotel case and stated that he stood by
all that he had said in that case and that it was quite
apparent that the Government Department attached
an overwhelming importance to imposing secrecy
for their own documents. His Lordship could not
accept that contention. In the case where a Minister
claimed privilege for a class of documents, he must
justify his objection with reasons.
He should
describe the nature of the class and the reason why
the document should not be disclosed, so that the
Court itself could see whether the claim was well
taken or not. In this case the affidavit in common
form was to his Lordship's mind insufficient in
itself to carry the protection which the Minister
claimed.
If a case should come before the Court
where the interests of justice did require it and the
claim for privilege was not well taken, the Court
would not hesitate to order disclosure. This, how
ever, was not such a case. Harman L. J. concurring,
said that the right of the Crown to withhold docu
ments from disclosure was a relic from days not far
distant when the Crown never had to make any
discovery at all; and not unnaturally they now fought
trench by trench in seeking to preserve the system of
immunity which they had for so long enjoyed.
Salmon, L. J. in concurring said that the Court had
been told, and, of course, accepted, that all Ministers
always " anxiously considered"
the documents
when any question of a claim for privilege arose.
However, in the present case His Lordship agreed
that in view of the nature of the inquiry under
the Act of 1958 the Court should not order these
documents to be disclosed.
Wednesbury Borough Council & Others
v.
Ministry of Housing and Local Government.
(1965) i All. R. 186.)
Taxation of costs
The Plaintiff was ordered to pay costs on a party
and party basis. The action raised difficult points of
law, and the sum at stake was £16,000. Both sides
engaged leading counsel. The taxing master allowed
the corporation's fees for leading counsel in the
Chancery Division and the Court of Appeal. The
plaintiff's fees for leading counsel were somewhat
less. On taxation in the House of Lords the corpor
ation was allowed less fees for leading counsel. The
plaintiff lodged objections to the amounts allowed
by the taxing master for fees paid by the corporation
in respect of the proceedings in the Chancery
Division and the Court of Appeal.
The master
rejected the objections. The plaintiff applied under
the Supreme Court Costs Rules, 1959, r. 35, for a
review of the taxing master's decision.
Pennycuick, J., said that in a taxation of costs on
a party and party basis under r. 28 (2) of the Supreme
Court Costs Rules, 1959, there was no precise
standard of measurements of the necessary and proper
sum to be allowed for counsel's fees which was
applicable to all cases.
The taxing master must
determine what he considered to be the proper
figure, employing his knowledge and experience,
and on a review the judge must apply his own
knowledge and experience. However, in the present
case, the measure applicable was the estimated fee
of a hypothetical counsel who was capable of
conducting the case effectively but who was unable
or unwilling to insist on the particularly high fee
sometimes demanded by counsel of pre-eminent
reputation.
In all the circumstances this case was
one which could only have been effectively con
ducted by leading counsel of high calibre, and the
fee paid to the leading counsel was not excessive to
the requirements of the particular action and should
be allowed.
In determining the correct figure the
fact that opposing counsel was content to accept a
lesser fee and the fact that on taxation in the House
of Lords a lower figure was allowed were factors of
weight but were not conclusive.
It was, however,
clear that the corporation could not throw upon the
plaintiff any costs incurred for a purpose other than
the defence of the particular action. Application
dismissed.
(Simpsons Motor Sales (London) Ltd.
v.
Hendon
Corporation (No. 2) (1964) 3 All R. 833.)
Charging Orderfor untaxed costs. Set off.
The wife obtained a divorce from the husband
with an order for costs. While the suit was pending,
72