Privilege & Immunity

Historically, the State, embodied by the Crown, had privilege and immunity from legal process. The King could do no wrong and was not liable for actions committed personally or in his name. Further, the King could not be sued in his own courts.

Crown privilege covered a whole range of government liability.

The Crown Proceedings Act removed Crown privilege in key areas, including liability in tort and in contract. Civil proceedings may be taken against the relevant government department or, if there is no responsible person, the Attorney General. Courts may make orders that they could make in private proceedings.

Injunctions are not granted against the Crown. A declaration is made, and governments, being obliged to follow the law, will implement it.

An injunction may be granted in relation to judicial review, as it is not subject to the Crown Proceedings Act. An injunction may be necessary to enforce European Union law and may be granted.

The Crown is responsible in civil liability on its behalf and vicariously for employees and agents. It was responsible under contracts in the same manner as individuals.

The Crown may not enter agreements that fetter its duties and obligations. A contract to this effect may be invalid. However, ordinary contracts are enforceable.

Public Interest Immunity

Formerly, Crown privilege may have allowed the government to withhold documents in legal proceedings, civil and criminal. Certain documents may be presumptively not subject to disclosure. Classes of documents and other documents require consideration before being disclosed.

A public interest immunity certificate may claim public interest immunity.The court must be satisfied that there is an objective need to protect the immunity concerned.

Under the Crown Proceedings Act, the court may order the disclosure of documents in the interest of justice, provided that disclosure may be refused in the public interest. The public interest may arise from the administration of justice or the executive.

Immunity from disclosure may be required for the proper functioning of the civil service and government or may be relevant but do not require the same absolute confidentiality.Court rules on the issue of public interest balance the interest of the administration of justice and the interest of those who seek to maintain confidentiality in the information concerned.

The applicant should show that the documents are likely to contain information of substantial support in relation to a particular claim. It is not enough that they may be of relevance to the case.