Rahmatullah& Anor v The Ministry of Defence & Anor

Standard disclosure is not confined to documents that damage the disclosing party’s case. It includes material capable of adversely affecting either party’s case where, taken cumulatively, it is relevant to the pleaded issues.

Documents concerning comparable incidents may be relevant even when they do not concern the precise events in dispute, particularly where they illuminate knowledge, practice or the reasonableness of conduct. A court should not require piecemeal selection where that would destroy the evidential context. Under the Civil Procedure Rules 1998, redaction should not be used so narrowly that disclosed material becomes unintelligible or disproportionate resources are spent scrutinising irrelevant passages.

Two Pakistani claimants alleged that British forces captured them in Iraq in 2004, transferred them to United States control, and thereby exposed them to detention, torture and mistreatment in Afghanistan. Their claims included alleged mistreatment by British personnel, the transfer itself, and failures to secure their return or prevent further mistreatment.

Before trial, disputes arose concerning disclosure. The Special Advocates sought disclosure of all case summaries from agency reviews, the Operation Lydd report concerning the rendition of Mr Belhaj, and closed reports of the Intelligence and Security Committee. The defendants argued that disclosure should be confined to selected cases, periods and facilities, and that material should be heavily redacted. The central issues were the proper scope of standard disclosure and the permissible use of redaction in closed material proceedings.

1. Applications granted. The defendants were ordered to disclose the agency-review case summaries, the Operation Lydd report and the relevant closed reports in the terms sought.
2. Standard disclosure extends beyond documents adverse to the disclosing party. It includes documents capable of adversely affecting the other party’s case. The court applied the approach in Serious Organised Crime Agency v Namli [2011] EWCA 1411.
3. All case summaries generated by the agency reviews were relevant. Their cumulative effect could illuminate the pleaded issues, including what the defendants knew about rendition, detention conditions and mistreatment. Selecting only apparently salient summaries could not preserve that cumulative evidential picture.
4. Material concerning other incidents may be relevant where it has generic significance for the issues in dispute. The Operation Lydd report was relevant to the extent to which United Kingdom authorities may have balanced legal responsibilities against broader political considerations. The whole report, rather than a two-page summary, was required because context was material. The court relied on Nickeln v Symmons [1996] P.N.L.R 245.
5. Closed reports were relevant and disclosable notwithstanding that opinions within them might later raise admissibility questions. Redactions removing references to individuals, countries and dates impeded proper understanding. The overriding objective, as modified by Civil Procedure Rules 1998 CPR 82.2, and CPR 31.6 did not justify an unduly narrow approach to relevance or prolonged scrutiny of redacted material where no other ground of exclusion was relied upon. The court referred to WH Holding Ltd v E20 Stadium LLP [2018] 2578 (Ch).