Abdule & Ors v The Foreign And Commonwealth Office & Ors (national security - jurisdiction and status)

In proceedings involving a proposed closed material procedure, the court should ensure that the court and parties can understand the issues before the statutory application is determined. Where the State relies on a general denial and has not shown the judge the closed material said to explain its position, a draft closed defence and, so far as practicable, an open defence may properly be ordered.

A Queen’s Bench Master is a judge attached to the Senior Courts and proceedings before a Master are proceedings before the High Court. The Civil Procedure Rules provide for the court to perform the substantive acts required by Part 82, so a Master has jurisdiction in principle to exercise the jurisdiction under section 6 of the Justice and Security Act 2013. Nevertheless, the case should ordinarily be released to a puisne judge where the Master lacks the necessary closed-hearing facilities.

The claim arose from alleged United Kingdom involvement in the detention and mistreatment of the first claimant in Puntland, Somalia, and alleged consequences for her children. The causes of action included assault and battery, false imprisonment and misfeasance in public office.

The claimants applied for an open defence and a draft closed defence before the defendants’ anticipated application under section 6 of the Justice and Security Act 2013. The defendants opposed service and argued that a Master was not part of the High Court for the purposes of section 6(11). The issues were whether pleadings should be served, whether the Master had jurisdiction, and, if so, whether the matter should be released to a puisne judge.

1. Service of pleadings. The section 6 criteria are comparatively straightforward because the application need relate to only one issue and some sensitive material. Nevertheless, the court must have sufficient information to scrutinise the proposed closed material procedure and to protect fair and effective administration of justice, Article 6 rights, and open and natural justice.
2. A closed statement of reasons might in principle be sufficient, but the court could not assess the adequacy of a document which had not been shown to the judge. In a case involving wholly disputed allegations of State mistreatment, proceeding on an assurance about unseen material would create an impermissible closed procedure. The exceptional nature of closed material procedure required more than minimal sufficiency.
3. The defendants were therefore directed to serve a draft closed defence and, so far as properly pleadable, an open defence. The possibility of later amendment, summary judgment or wasted costs did not outweigh the need to identify the issues and place the parties as far as practicable on an equal footing.
4. Jurisdiction of a Master. Under section 4 of the Senior Courts Act 1981, Masters do not comprise the High Court. They are nevertheless judges attached to the Senior Courts, Queen’s Bench Division. The statutory history of the office, the definition of “judge” in CPR 2.3, and the continuing judicial functions of Masters supported that conclusion.
5. Proceedings before a judge attached to the Queen’s Bench Division are proceedings before the High Court. CPR 2.4 and Part 82 provide for the court to perform the substantive acts required in a section 6 application, including conducting the hearing and disposing of the application. A Master therefore had jurisdiction in principle, notwithstanding section 19(3) of the Senior Courts Act 1981.
6. As a matter of discretion, the proceedings were released to a full puisne judge sitting in the closed court. Masters lacked the necessary closed facilities and staff, and national security and the modified overriding objective made that course proportionate. The question of service of the defences was not released.