Al Rawi v Security Service

The Supreme Court considered whether the common law permits a court to order a "closed material procedure" (CMP) in an ordinary civil claim for damages, whereby material contrary to the public interest would be disclosed only to the judge and special advocates and withheld from the other parties. The Court held that, absent clear statutory authority, the courts should not develop such a procedure as a general replacement for the established public interest immunity (PII) process because it would trench on fundamental common‑law principles of open justice and natural justice (including the right to know the case against you and to see reasons for the decision).

The Court recognised the role of PII and that the common law can develop limited measures (for example the use of special advocates within the PII process) but concluded that wholesale substitution of PII by CMPs or their routine use in ordinary civil litigation is a matter for Parliament. The Court left open narrow possibilities (for example, exceptionally where a claim would otherwise be untriable and the claimant consents), which should be determined only in concrete factual contexts.

The claimants alleged that state agencies (including the Security Service) were complicit in their detention and ill‑treatment abroad and brought civil claims for damages. The defendants indicated they held sensitive material they would have to withhold in the public interest and proposed parallel open and closed proceedings with disclosure of closed material only to the court and special advocates. The High Court (Silber J) held a CMP could in principle be ordered; the Court of Appeal reversed that decision ([2010] EWCA Civ 482). The Secretary of State and other state bodies appealed to the Supreme Court.

The specific preliminary issue was whether it could be lawful and proper for a court to order a CMP in a civil claim for damages, as defined in the order. The Supreme Court heard extensive argument on the interaction of PII, open justice and natural justice, the role and limits of the court’s inherent jurisdiction to regulate procedure, and the operation and limits of special advocates.

• Nature of the relief sought: declaration that a court may order a closed material procedure in civil damages proceedings; guidance as to circumstances in which it might be used.
• Issues framed: (i) whether the common law permits a CMP in ordinary civil claims absent statutory authority; (ii) if so, in what circumstances; (iii) the relationship between CMP and the PII process; and (iv) the role and limits of special advocates.
• Court’s reasoning: the majority emphasised the entrenched common‑law rights to open justice and to know and answer the case against you; PII is the established common‑law mechanism for balancing disclosure and other public interests; a CMP as a general substitute for PII would erode fundamental rights and create uncertainty and unfairness. The Court accepted that special advocates can have a role within PII and left open that exceptionally, and in specified circumstances (for example where a case would otherwise be untriable and the claimant consents), a CMP might be permitted but only after careful consideration in the context of particular facts and, arguably, preferably by Parliament.

The Court therefore dismissed the appeal, declining to recognise a general common‑law power to order CMPs in ordinary civil claims without statutory authorisation, while acknowledging limited, fact‑specific possibilities which should be addressed case by case.

The appeal was dismissed. The Supreme Court held that, absent clear statutory authorisation, the courts should not recognise a general common‑law power to substitute a closed material procedure for the established public interest immunity process in ordinary civil claims because that would undermine fundamental common‑law principles of open justice and natural justice. The court accepted the continuing role of PII and the limited, supportive role of special advocates within that process and left open narrow exceptions (for example where a claim would otherwise be untriable and the claimant consents) to be decided on the facts or by Parliament.

On the pleadings the preliminary issue was decided by Silber J in favour of the defendants: [2009] EWHC 2959 (QB). The Court of Appeal allowed the claimants’ appeal and declared that the court has no such power in an ordinary civil claim: [2010] EWCA Civ 482, [2010] 3 WLR 1069. The defendants then appealed to the Supreme Court, which dismissed the appeal: [2011] UKSC 34.