Al Rawi & Ors v The Security Service & Ors

A court may lawfully and properly order a closed material procedure in a civil claim for damages. The power derives from the court’s control of its own procedure and may be exercised in exceptional circumstances and as a last resort, where necessary to ensure fairness. Relevant considerations include the seriousness of the issue, the volume and sensitivity of the material, the difficulty faced by the affected party in challenging the case against it, and whether a special advocate can materially assist. The procedure is not precluded by public interest immunity, the Civil Procedure Rules, the Crown Proceedings Act 1947 or the constitutional limits on judicial innovation. Any procedure adopted must protect the parties’ rights under article 6 of the European Convention on Human Rights.

Seven former detainees brought civil claims for damages against the Security Service, the Secret Intelligence Service and other government defendants, alleging involvement in unlawful detention, rendition, torture and ill-treatment by foreign authorities. The claims included false imprisonment, trespass to the person, conspiracy, torture, breach of contract, negligence, misfeasance in public office and breaches of the Human Rights Act 1998.

The court was asked to determine a preliminary issue: whether it could be lawful and proper to adopt a closed material procedure, involving disclosure of sensitive material to special advocates and the court but not to the affected party, in a civil damages claim. The question did not require the court to decide whether the procedure should be used in the particular claims or to settle its detailed terms.

1. Outcome. The preliminary question was answered in the affirmative. It could be lawful and proper for a court to order the defined closed material procedure in a civil claim for damages.
2. The court possesses an inherent jurisdiction to control its own proceedings, subject to statutory limitations. That power must be exercised with the most careful discretion and to prevent injustice. The authorities established that a special advocate may be used outside an express statutory scheme, but only in exceptional circumstances and as a last resort.
3. The relevant assessment is fact-sensitive. The court should consider the seriousness of the issue, the importance of the decision to the affected party, the difficulties in challenging the case in open court, the extent and sensitivity of the material, and whether a special advocate is likely to make a significant contribution. National security is an important competing public interest, but it does not determine the issue by itself.
4. The procedure was not inconsistent with public interest immunity. PII prevents material from being disclosed or relied upon by either party where the public interest in withholding it prevails. A closed procedure differs because the court may consider relevant material with the assistance of a special advocate, while preserving the public interest against disclosure.
5. The Civil Procedure Rules and the Crown Proceedings Act 1947 did not preclude the procedure. The relevant procedural obligations were qualified by exceptions, including public interest and national security considerations. The overriding objective of keeping parties on an equal footing applied so far as practicable.
6. The proposed procedure was not impermissible judicial innovation. The courts had already accepted special advocate procedures in appropriate cases. If adopted, the procedure would require safeguards to protect the claimants’ common-law and Convention rights, including article 6 rights.
7. The judgment did not decide whether the procedure should be adopted in these proceedings or its precise operation. Further directions and a timetable were required.