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Al Rawi & Ors v The Security Service & Ors

Al Rawi & Ors v The Security Service & Ors

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Case Copied 13 July 2011 127 min read

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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

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:

"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."

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.

The proceedings

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] UKSC 34
Decision Date