Burmah Oil Co Ltd v Governor and Co of the Bank of England

A ministerial certificate claiming public interest immunity is not conclusive. The court must balance the public interest in protecting government communications against the public interest in the fair administration of justice.

Where the certificate, issues and description of the documents leave a real doubt whether relevant documents are sufficiently important to require disclosure, the court may inspect them privately. A properly supported request may justify inspection, but mere speculation or a fishing expedition will not. Even high-level policy documents are not absolutely immune, although their sensitivity carries substantial weight. Disclosure should be ordered only where it is necessary for the fair disposal of the proceedings or for saving costs.

Burmah Oil Co Ltd sought to reopen its sale to the Bank of England of British Petroleum stock for approximately £179 million. It alleged that the bargain was unconscionable and that the Bank had taken unfair advantage of its financial predicament.

The Bank listed documents concerning discussions with the Government, but the Crown opposed production of 62 documents on public interest grounds. Foster J upheld the objection. The Court of Appeal, by a majority, affirmed that decision. Before the House, the dispute was narrowed to ten documents recording communications during the negotiations over price and profit-sharing.

The central questions were whether those documents should be inspected privately by the court and whether their significance to the litigation outweighed the public interest in protecting high-level governmental communications.

Appeal dismissed unanimously. Lord Salmon, Lord Edmund-Davies, Lord Keith of Kinkel and Lord Scarman formed the majority on the preliminary question of inspection. They inspected the ten disputed documents before concluding that production should not be ordered. Lord Wilberforce would have dismissed the appeal without inspection.

1. Per Lord Keith and Lord Scarman, applying and developing Conway v Rimmer [1968] AC 910, a ministerial certificate is not conclusive. Public interest immunity is governed by law, and its applicability is ultimately for the court. The court must balance the public interest identified by the Minister against the public interest in the proper administration of justice.

2. High-level communications concerning the formulation of government policy attract powerful protection. Nevertheless, no class of documents is absolutely immune in every circumstance. The subject matter, the persons involved, the continuing sensitivity of the policy, the nature of the litigation, the relevance of the documents and their probable evidential importance may all affect the balance.

3. Per Lord Salmon, Lord Edmund-Davies, Lord Keith and Lord Scarman, private judicial inspection was justified. The timing and context created a reasonable probability that the documents might record the Bank's views about the fairness of the terms imposed upon Burmah. This was more than a merely speculative fishing expedition. Inspection was required because the court could not assess the documents' probable importance from their descriptions alone.

4. Lord Wilberforce considered that the certificate established a strong claim involving policy of the highest national importance. In his view, Burmah had identified nothing substantial to place in the opposing scale. Inspection should remain exceptional and should not be undertaken upon an unsupported assertion that useful material might be found.

5. After inspection, the majority concluded that the documents contained no material of sufficient evidential value to make disclosure necessary for disposing fairly of the action or saving costs. Their limited significance did not override the injury to the public service identified by the Minister. The Crown's objection was therefore upheld and the appeal dismissed.

1. House of Lords: Dismissed Burmah's appeal. A majority privately inspected the ten documents but held that their disclosure was unnecessary.
2. Court of Appeal: Bridge and Templeman LJJ, Lord Denning MR dissenting, dismissed the appeal from Foster J and granted leave to appeal.
3. High Court: Foster J upheld the Crown's objection to production of the documents.