Al Rawi and others v The Security Service and others

A court has no inherent common law power to replace public interest immunity with a closed material procedure in an ordinary civil claim. Such a procedure excludes a party from evidence, submissions and reasons used to determine the claim. It therefore departs from the fundamental requirements of natural justice and a fair trial.

Only Parliament may authorise that fundamental change. Public interest immunity remains the common law mechanism for balancing the administration of justice against national security and other public interests. A special advocate may assist that process because material protected by immunity is used by neither the opposing party nor the court at the merits trial.

The respondents claimed damages against the Security Service and other state bodies. They alleged complicity in their detention, rendition and ill-treatment by foreign authorities. The appellants wished to rely on sensitive material through parallel open and closed proceedings, with special advocates representing the respondents' interests in the closed part.

Silber J held that a court could lawfully and properly order such a procedure: [2009] EWHC 2959 (QB). The Court of Appeal allowed the claimants' appeal and declared that the court had no power to order it in an ordinary civil damages claim: [2010] EWCA Civ 482, [2010] 3 WLR 1069.

The claims settled before the Supreme Court hearing. The Court nevertheless decided the appeal because it raised an important question of principle. The central issue was whether the common law permitted the proposed closed material procedure, as a substitute for public interest immunity, without statutory authority.

1. Appeal dismissed by a majority of eight to one. The proposed closed material procedure could not replace the conventional public interest immunity process without legislation. Lord Dyson gave the leading judgment for dismissal. Lord Hope and Lord Kerr agreed with his reasons. Lord Brown also dismissed the appeal on the basis that the proposed common law development was impermissible. Lord Mance, with whom Lady Hale agreed, rejected substitution of the public interest immunity process. Lord Phillips dismissed the appeal on that narrower ground. Lord Rodger had indicated that he would dismiss it. Lord Clarke dissented.

2. Open justice and natural justice are fundamental common law principles. A party must know the opposing case and evidence, have an opportunity to answer them, challenge witnesses, participate in the trial and know the reasons for the result. A closed procedure departs from those requirements because the excluded party cannot see or answer the closed evidence, submissions or judgment. Special advocates may mitigate those defects but cannot make the proposed substitution permissible.

3. The court's inherent power to regulate procedure is limited. It must respect the fundamental requirements of a fair trial and cannot introduce a procedural revolution which abrogates them. A fundamental change of this kind requires parliamentary authorisation after consultation and the creation of detailed procedural safeguards.

4. Public interest immunity is fundamentally different. The court balances the public interest in withholding sensitive material against the public interest in administering justice. Material ordered to be disclosed is available to both parties and the court. Material protected by immunity is available to neither the opposing party nor the court at the merits trial. A special advocate may properly assist the court in conducting the immunity exercise.

5. The proposed procedure was also unsupported by the Civil Procedure Rules 1998. Their ordinary provisions contemplate conventional pleadings, disclosure and evidence. Express modifications exist where Parliament has authorised closed procedures. This supported, but did not independently determine, the result.

6. Lord Dyson left open whether a closed procedure could be adopted by agreement because that issue was not argued. Lord Mance and Lady Hale would have permitted one, with the claimant's consent, only after public interest immunity had made the claim otherwise untriable. Lord Phillips left supplementary procedures open for a future case. Those qualifications did not alter the rejection of the procedure defined in the preliminary issue.

1. United Kingdom Supreme Court: Dismissed the state bodies' appeal by a majority of eight to one and upheld the negative answer to the preliminary issue: [2011] UKSC 34.
2. Court of Appeal: Allowed the claimants' appeal and declared that the court had no power to adopt the proposed closed material procedure in an ordinary civil damages claim: [2010] EWCA Civ 482, [2010] 3 WLR 1069.
3. High Court: Silber J answered the preliminary issue affirmatively and held that the proposed procedure could lawfully and properly be ordered: [2009] EWHC 2959 (QB).