The King on the application of Amanat Ullah v National Crime Agency
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 22 February 2023 |
| Neutral Citation | [2023] EWHC 371 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2049/2020 |
and
[2023] EWHC 371 (Admin)
Mr Justice Chamberlain
Case No: CO/2049/2020
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Dan Squires KC and Julianne Kerr Morrison (instructed by ITN Solicitors) for the Claimant
Angus McCullough KC and Rachel Toney as Special Advocates
Sarah Hannett KC (instructed by the Government Legal Department) for the Defendant
Ben Watson KC and James Stansfeld (instructed by the Government Legal Department) for the Interested Parties
Hearing date: 14 December 2023
Approved Judgment
This judgment was handed down remotely at 10.00am on 22 February 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
On 28 February 2004, Amanat Ullah was captured by British soldiers in Iraq and handed over to US armed forces. Soon afterwards, he was taken by them to Afghanistan, where he was held without charge or trial until he was released in September 2014. He is now in Pakistan.
Mr Ullah says that, during the course of his detention, he was repeatedly tortured and subject to other forms of inhuman and degrading treatment. He brought a civil claim against the UK Government (formally the departments headed by the Secretaries of State) alleging mistreatment by UK armed forces when he was captured, unlawful rendition to the custody of US armed forces and UK complicity in the treatment suffered under US control. In its Defence, the UK Government alleged, inter alia, that Mr Ullah was a senior member of the terrorist group Lashkar-e-Tayyiba (“LeT”). Mr Ullah denied this. The truth of this allegation was never determined judicially because Mr Ullah's claim was settled. The settlement was recorded in a consent order dated 13 December 2019. It included provision for payment to Mr Ullah of what the Secretaries of State describe in their skeleton argument as “a very considerable sum of money indeed”.
The settlement sum was duly transferred to ITN Solicitors, who act for Mr Ullah (“the solicitors”). However, prior to the conclusion of the settlement agreement, a “Mr al-Dakhil” had been added by the US Treasury's Office of Foreign Assets Control (“OFAC”) to its Global Terrorism Sanctions Regulations; and Mr Ullah's name appeared as an alias of Mr Al-Dakhil. So, the solicitors considered it prudent to seek consent from the National Crime Agency (“NCA”) under s. 21ZA of the Terrorism Act 2000 (“the 2000 Act”) before transferring the money to Mr Ullah. Consent immunises the person to whom it is given from liability for an offence under ss. 15 to 18 of the 2000 Act (broadly speaking, offences concerned with transactions or arrangements for terrorist purposes). Consent was refused. The refusal was reconsidered but confirmed on 30 September 2020. The reason given was “HM Government's assessment that [Mr Ullah] is a senior member of LeT, which is a proscribed organisation”.
So, the solicitors could not transfer the settlement sum to Mr Ullah without risking committing an offence under the 2000 Act and have not done so. The consequence is that the “very considerable” sum which (presumably) HM Government intended to be paid to Mr Ullah, or at least applied for the benefit of his family, is instead sitting in the solicitors' client account.
By this claim for judicial review, Mr Ullah challenges the NCA's refusal to consent to the transfer of the settlement money from his solicitors to him. On 23 July 2021, Lane J made a declaration under s. 6 of the Justice and Security Act 2013, permitting a closed material procedure. CLOSED material has since been filed and the special advocates have considered the material.
Separately, Mr Ullah has applied for a protective costs order (“PCO”), to protect him from or limit his liability for costs until such time as he is provided with sufficient disclosure to enable him to understand the merits of the claim. He invokes the jurisdiction recognised in Begg v HM Treasury by Cranston J [2015] EWHC 1851(Admin) and by the Court of Appeal [2016] EWCA Civ 568, [2016] 1 WLR 4113 (“ Begg”). The defendant and the Secretaries of State argue that there is no power to make such an order and have declined to give an estimate of their costs. They have, however, confirmed that any application for costs against Mr Ullah would be limited to those of the OPEN parts of the proceedings.
On 15 March 2022, I ordered that the application for permission to apply for judicial review, together with the application for a PCO be determined together at a hearing. That hearing was listed for 14 December 2022.
Permission to apply for judicial review
At the hearing, I heard OPEN and CLOSED submissions, before indicating that permission to apply for judicial review would be granted. Although some grounds appeared stronger than others, I took the view that the case raised an issue of importance and it would not be sensible to limit what could be argued at the substantive hearing. I therefore granted permission to apply for judicial review on all grounds.
Although it is not for the court to direct efforts at settlement, and while noting the arguments on ground 5, I would encourage the parties to consider discussing whether there is any acceptable mechanism by which the settlement sum could be lawfully applied for the benefit of Mr Ullah's family, without exposing his solicitors to the risk of prosecution under the 2000 Act.
Protective costs order
Submissions for Mr Ullah
For Mr Ullah, Dan Squires KC submitted that Mr Ullah was now impecunious. He was trying to support his wife and children in Pakistan on an income of £70–95 per month. His lawyers cannot advise him as to his chances of success because they have not been shown the CLOSED evidence against him. Yet the defendant and interested parties have refused to confirm that they will not seek their costs of the OPEN part of the proceedings if the claim fails; and they have also refused to give any estimate of their costs. This leaves him exposed to potentially unlimited costs.
Mr Ullah's solicitors and counsel are acting under a discounted conditional fee agreement which caps their own costs at £43,000. They have offered to accept a cap of £50,000 on the combined costs of the defendant and interested parties until sufficient disclosure is given to enable Mr Ullah to receive informed advice on his prospects of success. This offer was rejected.
The jurisdiction to make PCOs was developed in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600 and other cases where claimants were litigating points in the public interest. In Begg, however, Cranston J recognised a new category of case in which a PCO could be made: those where, from the open material, it would appear that an individual had reasonable prospect of succeeding in an appeal, but because closed evidence was being relied upon against him, he could not properly assess his prospects of success. On appeal, the jurisdiction to make an order in that category of case was common ground, and Lord Dyson said that, in exercising it, “[g]iven the disadvantage to which CMPs (closed material procedures) inevitably expose litigants, the courts should be vigilant to ensure that the procedures do not operate in any way that is more unfair, or exacerbates the inequality between the parties to a greater extent than is necessary”: see at [21].
Thus, the purpose of a Begg-type order is quite different from that of a Corner House-type order: to minimise the unfairness caused by a closed material procedure. Viewed against that background, ss. 88–90 of the Criminal Justice and Courts Act 2015 (“the 2015 Act”) should be read as regulating the conditions and procedure for Corner House-type orders, but not Begg-type orders. The consultation and proposals which preceded the enactment of the 2015 Act defined a PCO as an order which “limits the cost exposure of a claimant in a public interest case” (emphasis added). The Explanatory Notes confirm at para. 99 that the purpose was to codify the rules governing Corner House-type orders.
Furthermore, if ss....
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