Al-Rawi & others v The Security Service & others

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date04 May 2010
Neutral Citation[2010] EWCA Civ 482
Docket NumberCase No: T3/2009/2581,2584,2680 & 2682

[2010] EWCA Civ 482

2009 EWHC 2959 (QB)

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

(QUEEN'S BENCH DIVISION)

Mr Justice Silber

Before: Master of the Rolls

Lord Justice Maurice Kay

and

Lord Justice Sullivan

Case No: T3/2009/2581,2584,2680 & 2682

Between
(1) Bisher Al Rawi
Appellants
(2) Jamil El Banna
(3) Richard Belmar
(4) Omar Deghayes
(5) Binyam Mohamed
(6) Martin Mubanga
and
(1) The Security Service
Respondent
(2) The Secret Intelligence Service
(3) The Attorney General
(4) The Foreign & Commonwealth Office
(5) The Home Office

Dinah Rose QC, Richard Hermer QC and Charlotte Kilroy (instructed by Birnberg Peirce & Co) for the 1st to 4th Appellants

Leigh Day & Co for the 5 th Appellant

Michael Fordham QC and Naina Patel (instructed by Christian Khan Solicitors) for the 6th Appellant

Jonathan Crow QC, Rory Phillips QC, Daniel Beard and Karen Steyn (instructed by The Treasury Solicitor) for the Respondents

John Howell QC and Jessica Boyd on behalf of the Intervenors Liberty and Justice

Guy Vassall-Adams on behalf of the Media Intervenors

Hearing dates: 8 & 9 March 2010

Lord Neuberger MR:

This is the judgment of the court, to which all members have contributed.

The issue to be resolved

1

The issue on this appeal is whether Silber J was right to conclude, as the defendants contend, that it is open to a court in England and Wales, in the absence of statutory authority, to order a closed material procedure for part (or, conceivably, even the whole) of the trial of a civil claim for damages in tort and breach of statutory duty.

2

A closed material procedure has been defined by agreement between the parties, at least for present purposes, as being:

“A procedure in which:-

(a) a party is permitted

(i) to comply with his obligations for disclosure of documents, and (ii) to rely on pleadings and/or written evidence and/or oral evidence without disclosing such material to other parties

if and to the extent that disclosure to them would be contrary to the public interest (such withheld material being known as 'closed material'); and

(b) disclosure of such closed material is made to special advocates and, where appropriate, the court; and

(c) the court must ensure that such closed material is not disclosed to any other parties or to any other person, save where it is satisfied that such disclosure would not be contrary to the public interest.

For the purposes of this definition, disclosure is contrary to the public interest if it is made contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest.”

3

The “party” referred to in that definition will almost always be the Crown or some arm or emanation of the Government. A special advocate is a lawyer with rights of audience, who has been cleared by the Government to see closed material, and who is appointed by the Attorney General in a case where closed material is involved. The special advocate's role was succinctly described by Sedley LJ in Murungaru v Secretary of State for the Home Department [2008] EWCA Civ 1015, paragraph 17, as being “to test by cross-examination, evidence and argument the strength of the case for non-disclosure”, and, if the case for non-disclosure is made out, “to do what he or she can to protect the interests of [the other party], a task which has to be carried out without taking any instructions [from the other party or his lawyers] on any aspect of the closed material”. Thus, although the special advocate is engaged to protect the interests of the other party in the litigation, he or she does not actually act for, and cannot normally take instructions from, that other party.

4

The issue is raised as one of general principle. However, perhaps unsurprisingly, Ms Rose QC and Mr Fordham QC, for the claimants, and Mr Crow QC for the defendants, have relied in the course of their submissions on the facts of the instant case as an example of why the issue should be resolved in the way that they respectively contend. A very brief summary of the factual background to this appeal is therefore appropriate.

The factual background

5

The six claimants are individuals who were detained at various locations, including the United States detention facility in Guantanamo Bay. Although their claims are, of course, not identical, it is sufficient for present purposes to say that they each contend that, as a result of their respective detention and alleged mistreatment while detained, they have valid claims under at least some of the following heads, namely, false imprisonment, trespass to the person, conspiracy to injure, torture, breach of contract, negligence, misfeasance in public office, and breach of the Human Rights Act 1998. The claimants brought their claims by issuing claim forms, together with fully pleaded Particulars of Claim, in the Queen's Bench Division of the High Court. The defendants to the claims are the Security Service, the Secret Intelligence Service, the Foreign and Commonwealth Office, the Home Office, and (in a representative capacity) the Attorney General (“the defendants”). The claims are based on the contention that, to put it in broad terms, each of the defendants caused or contributed towards the alleged detention, rendition and ill treatment of each of the claimants.

6

The defendants then filed an “Open Defence”, in which, while admitting that each of the claimants was detained and transferred, the defendants put in issue any mistreatment which the claimants allege, and, in any event, denied any liability in respect of any of the claimants' detention or alleged mistreatment. Paragraph 1 of the Open Defence explains that “there is material not pleaded in this Open Defence which [the defendants] wish to contend that the court should consider but which cannot be included without causing real harm to the public interest.” In paragraph 3, it is stated that there is a “Defence”, which “pleads more fully to the Particulars of Claim and includes material the disclosure of which the defendants consider would cause real harm to the public interest”. Paragraph 3 goes on to explain that “[w]here a paragraph of the Particulars of Claim is not pleaded to in this Open Defence, it will have been the subject of pleading in the Defence” and that “some of the pleadings in this Open Defence are more fully pleaded to [sic] or qualified by statements in the Defence.”

7

The Open Defence makes it clear that the defendants wish the case to proceed throughout on the basis that it includes what may be characterised as a closed element. Thus, at least on the face of it, during the period prior to trial, there would be parallel open and closed pleadings, parallel open and closed disclosure and inspection, parallel open and closed witness statements, and parallel open and closed directions hearings. Similarly, at the trial, the hearing would be in part open and in part closed, no doubt with some documents and witnesses being seen and heard in the open hearing and others in the closed hearing (and some witnesses conceivably giving evidence at both hearings). After trial, there would be a closed judgment and an open judgment, which would be in substantially the same terms save that those passages in the closed judgment which referred to or relied on closed material would be excluded from the open judgment. In relation to the open elements of the proceedings, the claimants would be represented by their solicitors and counsel in the normal way; however, in relation to the closed elements, their interests would, in effect, be protected by special advocates.

8

The claimants object to the course proposed by the defendants, contending for the normal approach in cases where the Crown or Government emanations are parties and consider that they have relevant documents in respect of which public interest immunity (“PII”) might be claimed, and where the defendants could call relevant oral evidence which might not be able to be given on public interest grounds.

9

The defendants accept that the PII procedure is well established, but they contend that the course which they favour is permissible in any civil case, at least before a judge sitting without a jury, and that it may well be appropriate in this case, where there is a very substantial amount of potentially relevant material which may be subject to PII. The evidence filed on behalf of the defendants suggests that there may be as many as 250,000 potentially relevant documents, and that PII may have to be at least considered in respect of as many as 140,000 of them. It is also said by the defendants that the PII exercise may take three years before the relevant Ministers can conscientiously decide in respect of which documents PII can properly be claimed. The effort, cost, and delay involved in such an exercise, argue the defendants, may well justify a different approach, such as that presaged by the Open Defence.

10

The issue came before Silber J, and he decided that, as a matter of principle, it was open to the court to order a closed material procedure in relation to a civil claim for damages – [2009] EWHC 2959 (QB). The claimants' appeal is supported by Justice and Liberty, represented by Mr Howell QC, and by Guardian News and Media Ltd, Times Newspapers Ltd, and the BBC, for whom Mr Vassall-Adams appears.

Summary of conclusion

11

We have concluded that we should allow this appeal, and that we should say firmly and unambiguously that it is not open to a...

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