Ismail Kamoka and Others v The Security Service and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 15 February 2019 |
| Neutral Citation | [2019] EWHC 290 (QB) |
| Docket Number | Case No: HQ13X00363 |
| Court | Queen's Bench Division |
| Date | 15 February 2019 |
[2019] EWHC 290 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jay
Case No: HQ13X00363
Tom de la Mare QC, Charlotte Kilroy and Helen Law (instructed by Birnberg Peirce) for the Claimants
Lisa Giovannetti QC, Rory Dunlop and Stephen Kosmin (instructed by Government Legal Department) for the Defendants
Angus McCullough QC, Tom Forster QC, Jennifer Carter-Manning and Rachel Toney (instructed by SASO) as Special Advocates
Hearing dates: 12 th and 13 th December 2018
OPEN JUDGMENT
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
There are two sets of applications presently before me. The first in time are the defendants' applications under section 6 of the Justice and Security Act 2013 (“the JSA 2013”), issued on 27 th April and 25 th May 2018 in relation to claimants 1–10 (“C1–10”), for a declaration that these are proceedings to which a closed material application may be made. Secondly, I am seized of applications under CPR r.3.4(2)(a) and/or CPR Part 24, issued on 21 st September 2018 on behalf of C1–5, seeking to strike out the Defence in relation to the claims for false imprisonment and trespass, alternatively ordering summary judgment on those claims.
Given that C1–5 can be in no better position under CPR r.3.4(2)(a), it is convenient and appropriate to limit my consideration to the summary judgment application under CPR Part 24: the greater includes the lesser.
The parties are agreed that I should address the summary judgment application before the defendants' section 6 application, although the sequencing cannot of course dictate the outcome. Mr Tom de la Mare QC realistically accepts that if he were to lose the application for summary judgment there would be no sound basis for resisting the defendants' section 6 application for a declaration. Instead, and in my view for good reason, he submits that in that eventuality I should impose a tight timetable for disclosure and for the section 8 hearing. I should add that even if the summary judgment application were to succeed, a section 6 declaration would still be required because issues of Lumba causation and quantum, including the claims for aggravated and exemplary damages, remain very much live. Besides, a section 6 declaration would be required for the remaining causes of action advanced by C1–5, and in respect of the other claimants.
On Friday 14 th December 2018 I made various orders and directions in connection with the section 6 applications. I also made orders in CLOSED in relation to various categories of material.
Outline of the Claims
This litigation has a lengthy, complex and tortuous procedural history which I can adumbrate as follows. The claims of C1–5 were struck out as an abuse of process by Irwin J ( [2016] EWHC 769 (QB)) but were restored on appeal ( [2017] EWCA Civ 1665). There was a case management hearing before me in February 2018 and I gave an ex tempore judgment on 9 th February ( [2018] EWHC 517 (QB)) during the course of which I summarised the factual background and sought to identify the crux of the case as set out in the pleadings. This was in the context of the defendants' contention that the present claims should be stayed behind Belhaj. The factual background has been set out most comprehensively in Irwin J's OPEN judgment of 22 nd January 2015 ( [2015] EWHC 60 (QB)), and insofar as reference need be made to matters of detail, this is the best source.
For present purposes, and in the light of the expository work done by others, I may summarise the facts necessary for the determination of this application briefly as follows.
C1–5 are of Libyan origin and are alleged to have been members or associates of the Libyan Islamic Fighting Group (“LIFG”) formed in the 1990s in opposition to the regime of Colonel Qadhafi. They have all sought asylum in the UK. From the late 1990s, and particularly after 9/11, there was a general thawing of relations between HMG and the Libyan regime, and an alleged increasing degree of interaction between their respective Security Services. On 18 th October 2005, no doubt following a lengthy and delicate process, a Memorandum of Understanding on Deportation with Assurances (“MoU”) was concluded with Libya. In contemplation of the imminent signing of the MoU, C1 and C2 were served with Notices of Intention to Deport on 3 rd October 2005; the other claimants on dates in November and December. They were all immediately detained. The national security threat they constituted is not presently in issue.
Appeals to SIAC were made by some of the claimants on the ground that the MoU, and the attendant monitoring arrangements, were insufficient to protect them if they were deported to Libya; and these succeeded in April 2007. C1–5 were released on SIAC bail on various dates thereafter, and there were then Control Order proceedings, the exact detail of which does not need to be addressed for present purposes, save to note that only C1–4 have brought false imprisonment claims in connection with the periods they were subject to these orders,
Pursuant to my Order given on 9 th February 2018, the claimants have filed Amended Consolidated Particulars of Claim which conveniently locate their various claims in one document. However, I have not yet decided whether these claims should be consolidated.
By way of summary, the following key facts are alleged:
(1) The defendants were aware of the circumstances surrounding the unlawful rendition to Libya, and detention and interrogation under torture by the US and Libyan Security Services, of Messrs Belhaj and Al Saadi (para 30.1). (For these purposes it is unnecessary to differentiate between the various defendants.) Considerable detail of this is subsequently provided.
(2) The defendants sent lists of questions to the Libyan, Saudi and US Security Services in order that they be put to detainees including Messrs Belhaj and Al Saadi, knowing that there was a real risk that the answers would be procured by torture (para 30.3).
(3) C1–5 were unlawfully detained because:
“the involvement of the defendants in the unlawful rendition and subsequent interrogation of Belhaj, Al Saadi and other detainees in Libya meant that the diplomatic assurances on which the claimants' deportation to Libya depended could never reasonably have been judged to provide adequate protection against the accepted risk of torture which these claimants faced on return. There was never at any point a reasonable prospect of their being deported to Libya.” (para 33.2)
(4) Either critically relevant information was not provided to the relevant decision-maker, the Home Secretary, in 2005, rendering his deportation and detention decisions unlawful on that basis (para 435), or he did consider it, in which case he acted irrationally (para 436). This was because:
“… no reasonable decision-maker could have concluded prior to 3 rd October 2005 … either that the balance of advantage in the developing relationship lay with Libya and was far more crucial to it, or that Colonel Qadhafi would consider it necessary to comply with the assurances in order to maintain good relations with the UK. On the contrary the Security Services' covert role in the abduction, rendition, arrest and/or subsequent interrogation of Belhaj, Al Saadi, C6 and/or C9 and other Libyan detainees made it far more likely that Colonel Qadhafi and/or his Security Services would conclude that the request for an MoU was a public relations exercise designed to please the courts as opposed to a genuine request that Libya abide by the assurances.” (para 436.4.4: this was part of the “critical plea” identified by Flaux LJ at para 13 of his judgment and more fully set out under para 12 – para 437 of the claimants' pleading in its original numbering)
The draft OPEN Defence filed on 11 th May 2018 pleads the following facts and averments:
(1) On 2 nd August 2005 the Home Secretary (Charles Clarke) was provided with a submission which outlined the national security case against C1. Similar submissions were subsequently provided in relation to C2–5. Later, he was provided with further information as to the progress of negotiations with the Libyan authorities concerning the terms of the MoU, that the latter had been agreed and initialled (on 21 st September), and that although it had not been possible to deport C2, for example, in the past due to article 3 concerns, in the light of the pending MoU deportation to Libya was now “a more realistic prospect” (paras 132–145).
(2) The allegations relating to Messrs Belhaj and Al Saadi are entirely irrelevant to the issue of safety of return to Libya pursuant to a MoU (para 189).
(3) As for para 435 of the Amended Consolidated Particulars of Claim:
“… it is denied that any non-disclosure to the Secretary of State of facts material to the deportation of C1–5 would render unlawful their detention pursuant to paragraph 2(2) of Schedule 3 to the 1971 Act. The Secretary of State formed an intention to deport C1–5, and the intention was formed in good faith. Notice of the Secretary of State's intention to deport C1–5 was served on them in the prescribed manner. In the premises, the necessary preconditions for lawful detention pursuant to paragraph 2(2) of Schedule 3 to the 1971 Act were met, in each case (para 261(iii)).”
(4) The Home Secretary was reasonably entitled to conclude on the available evidence that the Libyan authorities would comply with the MoU (para 262(ii)).
The Application under CPR Part 24
On 27 th July 2018, with the assent of...
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