Public interest immunity

The following Dispute Resolution practice note provides comprehensive and up to date legal information covering:

  • Public interest immunity
  • What is public interest immunity (PII)?
  • Claiming public interest immunity
  • Procedure for seeking the court's permission to withhold documents from disclosure and/or inspection
  • The court is the ultimate arbiter
  • The balancing exercise
  • The balancing exercise—practical considerations
  • Can PII be waived?
  • Alternative confidential procedures—closed material procedure (CMP), confidentiality rings, undertakings and redacting
  • Closed material procedure
  • More...

Public interest immunity

This Practice Note should be read in conjunction with Practice Note: Closed Material Procedure.

What is public interest immunity (PII)?

A party may object to disclosure and/or inspection on the grounds that production of the document(s) would be injurious to the public interest. This objection is known as an objection on the grounds of public interest immunity (PII).

The objection on the grounds of PII differs from other forms of 'privilege' in that the objection may encompass the very disclosure of the existence of documents, as well as their production. Moreover, it is an objection for the protection of the public interest (rather than the protection of any individual litigant’s privilege per se) (Science Research Council v Nasse).

The key question when considering an objection on the grounds of PII is whether the production of the documents concerned would so harm the public interest generally so as to justify withholding it, or them. When applying the test, it has to be balanced against the public interest that the administration of justice should not be frustrated. It is for the court, not the department or organ of central government (the executive), to decide whether to refuse or order disclosure on the grounds of public interest. However, the party asserting a PII objection to disclosure/inspection must itself follow the proper process before raising the objection.

Although an objection on

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