Closed material - Claimants subject of ­detention by foreign states - Claimants bringing action for damages

Al Rawi and others v Security Service and others: Supreme Court (Lady Hale, Lords Phillips P, Hope DP, Rodger, Brown, Mance, Kerr, Clarke and Lord Dyson SCJJ): 13 July 2011

The claimants sought compensation for their alleged detention, rendition and mistreatment by foreign authorities in various locations, including Guantanamo Bay, which they alleged had been committed by the defendant security service and other organs of state.

The defendants filed an open defence in which they admitted that the claimants had been transferred and detained, but in which they put in issue the alleged mistreatment and denied any liability for the claimants’ detention or alleged mistreatment.

At a case management hearing, the defendants indicated that they sought to withhold disclosure of certain confidential material on public interest immunity (PII) grounds. The material in question was contained in a closed defence.

The defendants proposed parallel open and closed proceedings and parallel open and closed judgments in which special advocates would represent the interests of the claimants in the closed hearings.

The Court of Appeal, Civil Division, ruled on a preliminary issue that the court had no power in an ordinary civil claim for damages to order, for the whole or part of the trial of a civil claim for damages, a ‘closed material procedure’, namely a procedure whereby a party was permitted to (i) comply with his obligations for disclosure of documents, and (ii) 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 (see [2010] All ER (D) 03 (May)).

Following that decision of the Court of Appeal, but before the appeal came on for hearing before the Supreme Court, the claims were settled. However, the defendants pursued their appeal, which was accepted by the Supreme Court on the basis that a point of general importance arose.

The issue for consideration was whether the court had the power to order a ‘closed material procedure’ for the whole or part of the trial of a civil claim for damages and, if so, in what circumstances was it appropriate to exercise the power and whether the PII process ought in such circumstances, to be replaced by a ‘closed material procedure’.

The appeal would be dismissed (Lord Mance, Lord Clarke and Lady Hale dissenting).

The court had no power at common law to order a ‘closed material procedure’ for the whole or part of the trial of a civil claim for damages.

There was no compelling reason to replace the PII process with a closed material procedure. The issues of principle raised by the closed material procedure were so fundamental that a closed material procedure should only be introduced in ordinary civil litigation (including judicial review) if parliament saw it fit to do so (see [67]-[69], [107], [152], 192] of the judgment).

The court had an inherent power to regulate its own procedure. However, that power was subject to certain limitations. The basic rule was that, subject to certain established and limited exceptions, the court could not exercise its power to regulate its own procedures in such a way as would deny parties their fundamental common law right to participate in the proceedings in accordance with the common law principles of natural justice and open justice.

The courts and parliament had to balance (i) the interest in maintaining a fair system of justice and (ii) the interest in the protection of national security, the international relations of the UK and the prevention, detection and prosecution of crime, and had reacted to the threat of terrorism to national security interests by introducing a form of closed material procedure (with the use of special advocates) for use in certain categories of case, and had balanced those interests, for example, by enacting the Prevention of Terrorism Act 2005 and the Counter-Terrorism Act 2008.

However, ‘closed material procedures’ and the use of special advocates continued to be controversial. It was not for the courts to extend such a controversial procedure beyond the boundaries which parliament had chosen to draw for its use thus far. The principle of open justice was a fundamental common law principle, both criminal and civil.

Subject to certain established and limited exceptions, ­trials should be conducted and judgments given in public. Unlike the law relating to PII, a ‘closed material procedure’ involved a departure from both open justice and natural justice principles. The importance of the open justice principle had been emphasised many times in the authorities.

Trials were conducted on the basis of the principle of natural justice. Any change to the common law had to be justified, otherwise the law would become unstable. That was particularly important where the change involved an inroad into a fundamental common law right (see [10]-[14], [47], [49], [67]-[69] of the judgment)

Applying those principles to the present case, the appeal court had correctly held that the court had no power at common law to order a ‘closed material procedure’ (see [67-[69], [107], [152], 192] of the judgment).

Decision of the appeal court [2010] All ER (D) 03 (May) affirmed.

Dinah Rose QC, Richard Hermer QC and Charlotte Kilroy (instructed by Birnberg Peirce and Partners) for the claimant, O; Jonathan Crow QC, Rory Phillips QC, Karen Steyn, Daniel Beard and Peter Skelton (instructed by Treasury Solicitors) for the defendants; Lord Lester QC and Guy Vassall-Adams (instructed by Guardian News & Media Legal Department) for the intervening party; John Howell QC and Naina Patel (instructed by Herbert Smith) for the intervening parties, Justice and Liberty.