Al Rawi & Ors v The Security Service & Ors

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    Summary


    Trinity Term
    [2011] UKSC 34
    On appeal from: [2010] EWCA Civ 482

    JUDGMENT

    Al Rawi and others (Respondents) v The Security Service and others (Appellants)
    before
    Lord Phillips, President
    Lord Hope, Deputy President
    Lord Rodger
    Lady Hale
    Lord Brown
    Lord Mance
    Lord Kerr
    Lord Clarke
    Lord Dyson
    JUDGMENT GIVEN ON

    13 July 2011

    Heard on 24 and 25 January 2011
    Appellant
    Jonathan Crow QC
    Rory Phillips QC
    Karen Steyn
    Daniel Beard
    Peter Skelton
    (Instructed by Treasury Solicitors)
      Respondent (Omar Deghayes)
    Dinah Rose QC
    Richard Hermer QC
    Charlotte Kilroy
    (Instructed by Birnberg Peirce and Partners)
         
    Interveners (JUSTICE and Liberty)
    John Howell QC
    Naina Patel
    (Instructed by Herbert Smith LLP)
      Intervener
    Lord Lester QC
    Guy Vassall-Adams
    (Instructed by Guardian News & Media Legal Department)
    LORD DYSON
    Introduction
  1. The issue that arises on this appeal is whether the court has the power to order a "closed material procedure" as described in the preliminary issue that was tried by Silber J for the whole or part of the trial of a civil claim for damages and, if so, in what circumstances it is appropriate to exercise the power. The preliminary issue was in these terms:
  2. "Could it be lawful and proper for a court to order that a 'closed material procedure' (as defined below) be adopted in a civil claim for damages?
    Definition of 'closed material procedure'
    A 'closed material procedure' means a procedure in which
    (a) a party is 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 (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. Silber J answered the question raised by the preliminary issue in the affirmative: [2009] EWHC 2959 (QB). The Court of Appeal (Lord Neuberger of Abbotsbury MR, Maurice Kay and Sullivan LJJ) [2010] EWCA Civ 482, [2010] 3 WLR 1069 allowed the claimants' appeal and held that the court has no such power in an ordinary civil claim for damages. The defendants appeal with the permission of the Supreme Court.
  4. The proceedings
  5. The preliminary issue was raised in proceedings in which the claimants alleged that the Security Service and other organs of the state (the appellants) had been complicit in the detention and ill-treatment of…
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[2011] UKSC 34
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