Zubaydah v Foreign, Commonwealth and Development Office and Others
| Jurisdiction | England & Wales |
| Judge | Lord Lloyd-Jones,Lord Stephens,Lord Kitchin,Lord Burrows,Lord Sales |
| Judgment Date | 20 December 2023 |
| Neutral Citation | [2023] UKSC 50 |
| Court | Supreme Court |
[2023] UKSC 50
Lord Lloyd-Jones
Lord Kitchin
Lord Sales
Lord Burrows
Lord Stephens
Appellants
Sir James Eadie KC
Jonathan Glasson KC
David Blundell KC
Melanie Cumberland
Andrew Byass
(Instructed by Government Legal Department)
Respondent
Richard Hermer KC
Ben Jaffey KC
Edward Craven
(Instructed by Bhatt Murphy Solicitors) Appellants
(1) Foreign, Commonwealth and Development Office
(2) Home Office
(3) Attorney General
Heard on 14 and 15 June 2023
Lord Lloyd-Jones AND Lord Stephens ( with whom Lord Kitchin and Lord Burrows agree):
The issue in this appeal is whether the law applicable under sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995 (“PILA”) to torts alleged to have been committed by two of the United Kingdom's security agencies, the Security Service and the Secret Intelligence Service (together “the UK Services”), is the law of England and Wales or the law of each of the six countries in which the claimant alleges he was unlawfully detained and tortured by the United States Central Intelligence Agency (“the CIA”).
The claimant, Abu Zubaydah, (also known as Zayn Al-Abidin Muhammad Husayn) has been detained without trial by the United States' authorities since March 2002. In these proceedings, the claimant alleges that the UK Services knew that he was being arbitrarily rendered to, detained in, and subjected to extreme mistreatment and torture by the CIA at secret black sites, but nevertheless from at least May 2002 until at least 2006, the UK Services sent numerous questions to the CIA with a view to the CIA eliciting information from him. The claimant alleges that in sending those questions, the UK Services expected and intended (or at any rate did not care) that the claimant would be and was in fact subjected to extreme mistreatment and torture by the CIA during those interrogation sessions or those parts of interrogation sessions which were conducted for the purpose of attempting to obtain answers to the UK Services' questions. The claimant's claim for damages against the UK Services is limited to those personal injuries sustained while he was being mistreated and tortured by the CIA to elicit answers to the UK Services' questions. The claimant had no contemporaneous knowledge of the countries where he was detained and tortured but he now alleges, based on publicly available materials, that the personal injuries which he sustained at the hands of the CIA were sustained in CIA “black site” facilities situated in (a) Thailand; (b) Poland; (c) Morocco; (d) Lithuania; (e) Afghanistan; and (f) Guantánamo Bay (“the Six Countries”).
The claimant brought these proceedings against the first defendant, the Foreign, Commonwealth and Development Office, and the second defendant, the Home Office, on the basis that the first defendant is vicariously liable for the acts and omissions of officials of the Secret Intelligence Service and the second defendant is vicariously liable for the acts and omissions of officials of the Security Service. The proceedings against the third defendant, the Attorney General, have been instituted on the basis that the claimant has a reasonable doubt as to which Government department is the appropriate defendant to these proceedings: see section 17(3) of the Crown Proceedings Act 1947.
The claimant has pleaded his claims under the law of England and Wales. Alternatively, the claimant has pleaded his claims under the law of the country which he was in when he sustained personal injuries. Accordingly, on the claimant's alternative pleading, Thai law is the applicable law in relation to mistreatment or torture resulting in personal injuries in Thailand, Polish law is the applicable law in relation to mistreatment or torture resulting in personal injuries in Poland, and so on. In relation to Guantánamo Bay, the claimant alleges that the applicable law is the law of the United States of America. However, in their Re-amended Revised Open Defence the defendants appear to contend that Cuban law should apply to conduct at Guantánamo Bay because, at para 42(b), it is pleaded that “Guantánamo Bay is within a foreign country to the US”. Accordingly, on the alternative to the claimant's primary case that the law of England and Wales applies, there may be an issue whether the law applicable in respect of mistreatment or torture at Guantánamo Bay is the law of the USA or Cuba. In addition, so far as concerns Guantánamo Bay, the claimant pleads, in the alternative to his primary case that the law of England and Wales applies, US law including the Alien Tort Statute 1789 which recognises the subset of customary international law in respect of violations of “specific, universal and obligatory” norms of international law. Accordingly, there may be an issue whether the law applicable in respect of mistreatment or torture at Guantánamo Bay is international law.
The torts alleged against the defendants under the law of England and Wales are misfeasance in public office, conspiracy to injure, trespass to the person, false imprisonment, and negligence. The cause of action in false imprisonment is not a cause of action in respect of personal injury within section 11(2)(a) of the PILA (set out at para 51 below). However, the parties have proceeded, and we are content to proceed, on the basis that the applicable law in relation to the tort of false imprisonment should be the same law as applicable to the causes of action in respect of personal injury.
Neither party drew any distinction for the purpose of this appeal about the applicable law between the different torts on which the claimant relies. For example, nobody suggested on the facts of this case that one applicable law might apply to the tort of misfeasance in public office and another to the tort of false imprisonment. Both parties proceeded on the basis that the law applicable to the claimant's claims as a whole was either the law of England and Wales or the law of each of the Six Countries. We shall do the same.
For national security reasons, the position of the defendants has been neither to confirm nor to deny the allegations, whether against the UK Services, who are said to have known about the CIA's alleged actions, or against the US authorities. A declaration has been made by consent under section 6 of the Justice and Security Act 2013 that “the proceedings are proceedings in which a closed material application may be made to the court”.
It was ordered by consent that the “issue of the law applicable to the Claimant's claim be determined as a preliminary issue”.
On the hearing of the preliminary issue, the claimant contended that the applicable law is the law of England and Wales while the defendants contended that the applicable law is the law of the country where the mistreatment occurred and the personal injuries were sustained: which we refer to as “the law of each of the Six Countries”. Lane J [2021] EWHC 331 (QB); [2021] 4 WLR 39 accepted the defendants' position and declared that the applicable law for the purposes of the claimant's claim is the law of each of the Six Countries.
The claimant appealed against Lane J's decision. The Court of Appeal (Dame Victoria Sharp, President of the Queen's Bench Division, Thirlwall and Males LJJ) [2022] EWCA Civ 334; [2022] 4 WLR 40 allowed the claimant's appeal and declared that the law of England and Wales applies.
The defendants now appeal to this court. It is appropriate at this stage to record that for the purposes of the preliminary issue only two options as to the applicable law have been presented by the claimant and by the defendants at all judicial tiers including before this court: that is the law of each of the Six Countries or the law of England and Wales. Neither the claimant nor the defendants contend that the law of the USA should apply across the board. We also record that the High Court, the Court of Appeal, and this court have not considered any closed material.
In this judgment we will continue to refer to the appellants as “the defendants” and to the respondent as “the claimant”.
There have been no findings of fact in these proceedings. However, by agreement between the parties, the preliminary issue as to the applicable law is to be determined by reference to assumed facts as pleaded in the claimant's Amended Particulars of Claim. As the facts as pleaded in the claimant's Amended Particulars of Claim determine the assumed factual background, it is necessary to set out several parts of those particulars. When we set out an assumed fact from those particulars, it must always be borne in mind that there have been no factual findings in these proceedings.
Because the claimant was held for years in detention conditions specifically designed to isolate and disorientate him, he is not able to give detailed evidence, for instance, as to the countries or the locations in those countries in which he was detained and tortured or as to the dates between which he was detained in those countries. Furthermore, the exceptionally grave mistreatment allegedly inflicted on the claimant over a period of years has resulted in lasting damage so that he is unable to comprehend and remember the dates and locations of his torture. In addition, the claimant is still detained in Guantánamo Bay with extremely stringent restrictions on his ability to communicate with his legal representatives. Accordingly, many of the facts alleged in the claimant's Amended Particulars of Claim are taken from publicly available...
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