Al Rawi & Ors v the Security Service & Ors (includes Order)

Where relevant documents are held by a defendant but disclosure is substantially delayed, the court may order staged disclosure before the wider disclosure exercise is complete. The court should balance relevance, expedition, fairness, proportionality and the overriding objective. Disclosure is not postponed merely because documents may later be viewed in incomplete context, provided the opposing party can address their significance. A public interest immunity issue may be determined after disclosure, and a special advocate may be appointed where the issues are complex and the claimant’s interests require representation. A proposed procedure requiring advance speculation about the contents of a future PII certificate is unnecessary and unworkable.

Six claimants brought claims arising from their detention at various locations, including Guantanamo Bay, and alleged mistreatment. They sought disclosure and inspection of guidance issued to intelligence personnel in 2002 and 2004 concerning the interrogation and treatment of detainees.

The defendants accepted that the documents were relevant and held by them, but opposed immediate orders on grounds of prematurity, the scale and context of the disclosure exercise, the timing of the PII assessment, and the possible use of a closed material procedure. The Court of Appeal had held that such a procedure was unavailable in common law damages claims, with the conventional PII regime applying. The central questions were whether disclosure should be ordered immediately, when any PII issue should be determined, and whether a special advocate should be appointed.

1. Disclosure ordered. The 2002 and 2004 guidance was relevant, was in the defendants’ possession, and might assist in determining or shortening the litigation. The very substantial delays in the general disclosure and PII processes justified decisive case-management action.

2. The court carried out an overall balancing exercise. The documents could be disclosed subject to a later PII hearing. Concerns that they might be presented in artificial isolation did not justify refusing disclosure, since the defendants could explain their proper context. Nor did the administrative difficulty of prioritising the documents outweigh the claimants’ interest in expedition, particularly given the constitutional importance and age of the claims.

3. The Court of Appeal’s decision in [2010] EWCA Civ 482 meant that the conventional PII regime had to be used for these damages claims. The possibility of a later appeal and adoption of a closed material procedure did not prevent the present order. The PII question was an appropriate first-stage issue and would not prejudice any later closed procedure.

4. A PII certificate was to be served by 10am on 9 July 2010, together with disclosure and inspection of the guidance, subject to any PII objection. The court rejected as unnecessary and unworkable a proposed requirement for a prior witness statement explaining the basis of a certificate not yet formulated by the relevant Minister or Ministers.

5. A special advocate was required because the PII issues were likely to be unusually complex and would involve difficult balancing. One special advocate, preferably leading counsel, was sufficient. The court accordingly requested the Attorney-General to make the appointment if inspection was opposed.

• Court of Appeal: held unanimously that a closed material procedure could not be used in common law claims for damages of this kind and that the conventional PII regime applied: [2010] EWCA Civ 482. Permission to appeal to the Supreme Court was refused, although an application for permission was contemplated.
• High Court (Queen’s Bench Division): ordered disclosure and inspection of the 2002 and 2004 guidance by 10am on 9 July 2010, subject to PII, and requested the appointment of one special advocate.