Kamoka & Ors v Security Service & Ors

The doctrine of abuse of process is flexible and requires a broad, merits-based assessment of all the circumstances. It is not confined to criminal proceedings, decisions of courts of competent jurisdiction, or cases involving identical parties.

A later claim is not abusive merely because it bears upon an earlier decision. The court must consider whether the claimant knew of the relevant cause of action, had a fair opportunity to raise it, and whether the later proceedings would be manifestly unfair or bring the administration of justice into disrepute. A general interest in earlier litigation does not create privity. Special Advocates acting under statutory closed-material procedures are not ordinarily privies or agents of the represented party.

Five Libyan-origin appellants brought claims in false imprisonment, trespass and misfeasance in public office. They alleged that newly discovered material showed unlawful conduct and non-disclosure by United Kingdom security agencies, affecting the legality of their detention, deportation decisions and Control Orders.

Irwin J initially declined to strike out the claims: [2015] EWHC 60 (QB). After considering closed material, he struck them out as an abuse of process: [2016] EWHC 769 (QB). The appellants appealed and renewed applications for permission on further grounds. The central questions were whether the Hunter and Henderson principles applied despite the closed procedures, and whether the appellants had had a sufficient opportunity to raise their present case in the earlier proceedings.

1. Appeal allowed. The Court of Appeal unanimously granted permission on Grounds D to G and allowed the appeal. The claims were not an abuse of process under either the Hunter or Henderson principles.
2. Abuse of process. Hunter v Chief Constable of the West Midlands Police [1982] AC 529 establishes an inherent and flexible jurisdiction. The jurisdiction is not limited to criminal convictions, final decisions of courts of competent jurisdiction, or proceedings involving identical parties or privies. Nevertheless, where the later proceedings concern an issue not previously decided between the same parties or their privies, abuse will be rare: In re Norris [2001] UKHL 34; JSC BTA Bank v Ablyazov (No. 15) [2016] EWCA Civ 987.
3. Opportunity to raise the case. A claimant who was unaware of the cause of action or material case relied upon in later proceedings cannot be treated as having had a full opportunity to contest the earlier decision. The flexible Hunter principle also permits exceptions where fresh evidence fundamentally changes the case or where procedural failure deprived the claimant of an effective appeal. The court must not apply the doctrine inflexibly where strike-out would deny access to the court.
4. Henderson and privity. The Henderson v Henderson principle concerns matters which could and should have been raised earlier. It did not apply because the appellants did not know of the present cause of action or critical material. The Special Advocates were neither privies nor agents. Their statutory role was limited, they were not responsible to the appellants in the ordinary professional sense, and communication with the appellants ceased once they received closed material. The other appellants also had no privity with the second and fifth appellants, whose SIAC appeals were not lead cases.
5. Application. The appellants did not seek to reopen the adverse national-security or terrorism-related findings as such. Their case concerned the legality of the decisions in light of alleged non-disclosure and the effect of the newly discovered material on the reliability of assurances concerning safety on return. The court therefore rejected the characterisation of the proceedings as a collateral attack. It did not decide the substantive merits of those claims.

• Court of Appeal (Civil Division) allowed the appeal and granted permission on the remaining grounds: [2017] EWCA Civ 1665.
• High Court of Justice, Queen’s Bench Division struck out the claims as an abuse of process: [2016] EWHC 769 (QB). An earlier judgment had declined to strike out the claims at that stage: [2015] EWHC 60 (QB).