Belhaj & Others v Secretary of State for the Home Department & Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Simon |
| Judgment Date | 21 May 2013 |
| Neutral Citation | [2013] EWHC 2672 (QB) |
| Court | Queen's Bench Division |
| Date | 21 May 2013 |
| Docket Number | Claim No: IHQ/13/0093 & IHQ/13/0234 |
[2013] EWHC 2672 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Simon
Claim No: IHQ/13/0093 & IHQ/13/0234
Mr Richard Hermer QC & Ms Maria Rose (instructed by Messrs Leigh Day) appeared on behalf of the Claimant
Mr Rory Phillips QC, Miss Karen Sleyn, Mr Peter Skelton & Mr Jonathan Hall (instructed by the Treasury Solicitors Department) appeared on behalf of the defendant
Approved Judgment
This is a case management conference which raises a central question of how the claim is to proceed. For the claimant Mr Hermer QC submits that it should proceed in the normal way, with disclosure, the exchange of witness statements and directions for the trial of the action, but taking into account the effect of the Justice and Security act 2013 (the JSA). For the defendants, Mr Phillips QC submits that there is a threshold issue which should be determined as a preliminary issue (for convenience I shall describe this as the non-justiciability issue), whether this is a claim which can properly be heard by a domestic court. He also adds that, if the court is going to deal with that point by way of preliminary, it ought to deal with the law that applies to the causes of action. Before deciding these questions it is convenient to summarise the proceedings so far.
The claim was issued on 28 June 2012 and the particulars of that claim were served on 8 October. The claimants seek a declaration of illegality and damages arising from what they say was the participation of the seven defendants in their unlawful abduction, kidnapping and removal across state borders, or rendition, to Libya in March 2004. The first claimant was a political opponent of the then leader of Libya, Colonel Gadaffi, with whom the British government had friendly relations at the time. As is the nature of international politics, those who were then thought to be good were later regarded as bad and those who were considered with disfavour are now held in good regard. The claimant led the battle for Tripoli in the summer of 2011 and ended the war as the Commander of the Tripoli Military Council. He is now the leader of a political party and a man whose friendship the British government seeks.
In 2003 he and his wife, a Moroccan national and the second defendant, were living in China. They hoped to come to this country to seek asylum and tried to take a commercial flight from Beijing to London. According to the particulars of claim, from which this account is taken, the claimants were detained by the Chinese authorities and removed to Kuala Lumpur in Malaysia. It was while he was there that agents of the British government are said to have notified the Libyan authorities of his location. At some stage the claimants were told that they could travel to London only via Bangkok, and then boarded a commercial flight to Bangkok. When they arrived it is said that they were physically detained by agents of the United States government, subjected to ill treatment and eventually sent on a non-commercial flight to Libya. The first claimant was sentenced to death, a sentence which was not carried out, but, say the particulars of claim, from 2004 to 2008 he was subjected alternately to intense periods of interrogation and torture and periods of complete isolation.
At heading K of the particulars of claim the claimants set out their causes of action. First, false imprisonment jointly with the United States and Libyan government, secondly, conspiracy to injure and trespass to the person and an unlawful means conspiracy, thirdly, misfeasance in public office and, fourthly, (paragraphs 96 to 100) negligence. It is clear from the particulars of claim and the defences that the trial has the potential to be lengthy and involve a protracted investigation of the underlying facts.
The defence of the first defendant sets out a common position taken by all defendants. They are unable, because of the provisions of the Official Secrets Act, to answer the case beyond to deny that they have acted unlawfully (see paragraphs 5 and 20) and, insofar as the claimants assert facts, the claimants are required to prove them. In addition it is said, first, that the claims should be struck out on the basis of the decision in Carnduff v Rock [2001] 1 WLR 1786, although it is right to note no such application has been made. Second, the claims are not justiciable in the English courts. Third, there are issues as to the applicable law of the torts (paragraph 7), which are said not to be the laws of England. Fourth, there are averments as to the first claimant's political links at the time.
For the defendants Mr Phillips, who makes the application, submits that the claim gives rise to issues which can and conveniently should be determined as preliminary issues: the non-justiciability issue, namely the application of the principle of state immunity, act of state and non-justiciability. These are matters of law requiring very little evidence and which are capable of determining the entire claim, or at least substantial parts of it, if the findings are in the defendants' favour. He relies, amongst other decisions, on that of the Divisional Court in R (Noor Khan) v the Secretary of State for Foreign and Commonwealth Affairs [2012] EWHC 3728 Admin where similar questions, albeit arising in the context of a claim for judicial review, were dealt with at an extended permission hearing. In addition, he submits that, if the court were to find that the claims were within the court's jurisdiction and justiciable, the court should determine the law which applies to the causes of action. That would be necessary in any event in relation to the negligence claims.
For the claimants Mr Hermer submits that the ordering of the preliminary issues in the absence of any findings of fact would be wrong in principle. He relies on the observation of Lord Neuberger MR in Bond v Dunster [2011] EWCA Civ 455 at 107:
"While they have their value, it is notorious that preliminary issues often turn out to be misconceived, in that, while they are intended to short-circuit the...
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