Al Rawi & Ors v Security Service & Ors

In an ordinary civil claim, a court cannot order a closed material procedure without statutory authority or, arguably, the agreement of all parties. A litigant’s rights to know the evidence and argument considered by the court, and to know the reasons for the outcome, form an irreducible minimum of a fair trial.

The court’s inherent procedural jurisdiction cannot alter those fundamental principles or create a procedure inconsistent with the Civil Procedure Rules 1998. Public interest immunity remains the established means of protecting sensitive material: material withheld on that basis cannot be used by either party. Possible exceptions involving vulnerable third parties or a substantial public interest dimension were left open.

Six claimants sought damages from security and government bodies for their alleged involvement in the claimants’ detention, rendition and mistreatment. The defendants wished to plead, disclose evidence and conduct parts of the trial through a closed material procedure. Sensitive material would be shown to the court and special advocates, but withheld from the claimants and their lawyers.

Silber J held that the court had power in principle to adopt that procedure: [2009] EWHC 2959 (QB). The claimants appealed. The central question was whether, without statutory authority, an English court could order a closed material procedure for the trial of an ordinary civil claim in tort or breach of statutory duty.

1. Appeal allowed. A court cannot, without statutory authority or perhaps the agreement of all parties, order a closed material procedure for the trial of an ordinary civil claim. Such a procedure would permit the court to determine rights by reference to evidence and submissions which a party and that party’s lawyers could neither know nor answer.

2. The right to know the evidence and argument considered by the court, together with the right to know why the case was won or lost, is an irreducible minimum of an ordinary fair trial. A special advocate who cannot normally take instructions about closed material is not an equivalent substitute for the party’s own lawyer. Public interest immunity differs fundamentally: if immunity is upheld, the material cannot be relied upon by either side.

3. The court’s inherent jurisdiction permits procedural development but cannot alter fundamental law. Nor may it establish a procedure contrary to the Civil Procedure Rules 1998. The rules governing defences, disclosure, witness statements, equality of arms and public hearings do not authorise a closed trial. The specially modified rules for statutory closed procedures confirm that legislation is required.

4. The proposed procedure also failed on practical grounds. Determining whether closed consideration would be fair would ordinarily require the public interest immunity exercise which the proposal was intended to avoid. Omitting that exercise could keep material closed which should have been disclosed. It would also impair the special advocate’s effectiveness and risk increasing cost, delay and complexity.

5. The authorities relied upon below did not establish the asserted jurisdiction. They concerned statutory schemes, interlocutory public interest immunity questions, proceedings having a substantial public interest dimension, consent, or observations made without argument on the present issue.

6. The court left open whether an exceptional closed procedure might be permissible where all parties agree or where the proceedings involve a substantial public interest dimension and the judge is not acting purely as an arbiter between parties.

1. Court of Appeal (Civil Division): The claimants’ appeal was allowed. The court held that the proposed closed material procedure could not be ordered for an ordinary civil trial without statutory authority or, arguably, agreement.
2. High Court of Justice, Queen’s Bench Division: Silber J held that the court had power in principle to order a closed material procedure in a civil damages claim: [2009] EWHC 2959 (QB). That conclusion was reversed.