Kamoka & Ors v The Security Service & Ors

Statutory schemes restricting challenges to decisions of SIAC or in Control Order proceedings do not create an absolute bar to separate private-law claims, particularly where the claims allege previously undiscovered suppression of material and seek damages or other relief unavailable within the statutory process. The statutory restrictions nevertheless form an important context when assessing abuse of process. The court must prevent collateral re-litigation where a claimant had a full opportunity to contest the earlier decision, but the question is merits-based and requires consideration of all the circumstances, including evidential overlap, the freshness and materiality of evidence, the public and private interests, and the risk of inconsistent judgments.

The claimants brought public- and private-law claims arising from detention, Control Orders, and United Nations asset-freezing designations connected with alleged links to the Libyan Islamic Fighting Group. They alleged that documents discovered after the fall of the Qadhafi regime revealed failures of candour, reliance on unreliable information, and suppression of material in earlier SIAC and Control Order proceedings.

The defendants applied to strike out or stay the claims. They argued that the statutory appeal and review procedures were exclusive, or that the private-law claims were abusive collateral challenges. The court considered separately the claims of claimants 1 to 5 and those of claimants 11 and 12.

The applications were determined as follows.

1. SIAC claims. The Special Immigration Appeals Commission Act 1997 did not impose an absolute bar on private-law proceedings in the unusual circumstances alleged. The claims did not, in substance, question a determinative SIAC decision by alleging a hard-edged error of law. They alleged that favourable SIAC outcomes had been reached despite an undiscovered abuse of process, and that SIAC’s adverse findings had not determined the appeals. Strict construction was required before common-law rights and remedies could be abrogated.
2. Control Order claims. The Prevention of Terrorism Act 2005, read with Schedule 8 to the Terrorism Prevention and Investigation Measures Act 2011, likewise did not absolutely bar civil proceedings or damages claims. The statutory limits on the High Court’s powers applied at the conclusion of the relevant statutory hearing. They did not prevent a separate claim, although such a claim could still be an abusive collateral challenge.
3. Abuse of process. The governing principle was that the court must prevent re-litigation intended, or tending, to rehear issues already addressed and to create inconsistent judgments. Under Hunter v Chief Constable of the West Midlands Police and Johnson v Gore Wood and Co, the assessment was broad and merits-based. It required attention to the opportunity previously available to the claimant, the extent of evidential overlap, the public and private interests, and the risk of incoherent litigation.
4. The court could not determine at this stage whether the documents discovered in Libya were genuinely fresh or materially different from closed material previously before SIAC or the Control Order courts. Since the claimants could not know the closed evidence, they were not required to show that the new evidence entirely changed the case. A credible basis for important fresh evidence required the defendants, if seeking strike-out, to show that it was not fresh or sufficiently material.
5. The claims of claimants 1 to 5 were stayed for 56 days. The defendants were directed to indicate whether they would renew the strike-out application by inviting examination of the closed material. The applications concerning claimants 11 and 12 were refused. Their private-law claims were not established to be abusive merely because related judicial review proceedings were extant; directions were required for consolidation or trial together and for possible closed-material procedures.