Kamoka & Ors v The Security Service & Ors

The doctrine of abuse of process applies to collateral challenges arising from closed-material proceedings. The court must make a broad, merits-based assessment of all the circumstances, including the public and private interests, rather than mechanically comparing issues. A party need not have had an ordinary full opportunity to challenge the earlier decision if it had the fullest opportunity reasonably available within the statutory national-security procedure. Proceedings commenced in exceptional circumstances may become abusive once the court has scrutinised the alleged new material and determined that further prosecution would undermine final decisions of competent courts.

The defendants renewed an application to strike out claims by five claimants as an abuse of process under Hunter v Chief Constable of the West Midlands Police [1982] AC 529. The claims alleged suppression of evidence concerning rendition, detainee treatment, intelligence-sharing and safety on return to Libya, and sought to underpin claims including false imprisonment and misfeasance in public office.

The claims followed earlier proceedings before SIAC and in relation to Control Orders. Those proceedings involved closed material and Special Advocates. The central issues were whether evidence had been suppressed, whether the claimants had an adequate opportunity to challenge the earlier decisions, and whether continuation of the new claims would constitute a collateral challenge.

1. Applicable principles. The court held that the Hunter doctrine applies in the context of closed material procedures. The absence of an ordinary full opportunity to challenge the earlier decision does not prevent its application where the claimant had as full an opportunity as the national-security statutory framework permitted. The court also relied on the broad, merits-based approach stated in Johnson v Gore Wood and Co [2002] 2 AC 1, and the broader analysis of collateral challenge explained in Amin v Director General of the Security Service [2015] EWCA Civ 653.
2. Evidence and opportunity. After reviewing open and closed disclosure, the court found no suppression of relevant evidence. SIAC had fully considered the evidence, and the Special Advocates had been alive to the issues concerning rendition, detainee reporting and safety on return. The alleged new material did not satisfy the test in Walpole v Partridge and Wilson [1994] QB 106 because it did not entirely change the aspect of the case.
3. Abuse of process. The proceedings were objectively a collateral challenge to final decisions of competent courts. It was not abusive to commence or prosecute them to the stage reached, because the claimants had some basis for believing that the material discovered after the fall of the Qadhafi regime might fundamentally alter the case. Once the evidence had been scrutinised, however, further prosecution would be abusive.
4. Scope of relief. Further prosecution of all claims arising from Control Order proceedings was abusive. The same applied to all SIAC-related claims brought by the second and fifth claimants. The first, third and fourth claimants were permitted a moderately short period to seek to distinguish their positions. The court invited submissions on directions and appropriate orders.