Ahmed v Director General of Security Service & Ors

Proceedings are an abuse of process where a civil claim would amount to a collateral attack on findings made by a competent criminal court, particularly where the claim would undermine the safety of a subsisting conviction.

The court must assess the matter objectively. It should compare the nature and effect of the criminal decision with the nature and basis of the civil claim, considering whether the essential elements of the later claim were adjudicated previously. It is unnecessary for success in the civil proceedings to make a different criminal result inevitable; serious undermining of the criminal rulings may suffice.

Fresh evidence permits an exception only where it substantially transforms the essential basis of the case.

The claimant had been convicted in the Crown Court of terrorist offences after a voir dire concerning alleged unlawful detention, torture and complicity by British authorities during his detention in Pakistan. His application for a stay of the prosecution was dismissed by Saunders J, and his appeal was dismissed by the Court of Appeal Criminal Division in [2011] EWCA Crim 184.

The claimant subsequently brought civil claims against six defendants, alleging that British authorities were complicit in his detention, ill-treatment and torture. The defendants applied under CPR 3.4(2)(b) to strike out the claim as an abuse of process. The central questions were whether the civil claim constituted an impermissible collateral attack on the criminal decisions and whether later evidence transformed the case sufficiently to justify allowing it to proceed.

1. The applications to strike out succeeded, and there was judgment for all six defendants. The civil action was an abuse of process under CPR 3.4(2)(b).

2. The governing principle from Hunter v Chief Constable of the West Midlands Police [1982] AC 529 is that the court may prevent proceedings which would be manifestly unfair or bring the administration of justice into disrepute. A civil action attacking a final criminal decision is not automatically abusive, but the court must exercise judgment in the circumstances of the particular case.

3. Following Arthur JS Hall & Co v Simons [2002] AC 615, the court must consider the nature and effect of the earlier judgment, the nature and basis of the later claim, and any justification for the collateral challenge. The relevant comparison is not a mechanistic matching of individual issues.

4. The broader approach stated in Amin v Director General of the Security Service [2015] EWCA Civ 653 required attention to the essential elements and thrust of the civil claim. The claimant’s allegations of unlawful detention, ill-treatment or torture, and British complicity had been central to the criminal abuse application. The Crown Court and the CACD had decided the central issue of British complicity against him.

5. It was immaterial that the civil claim covered a longer period, relied on different causes of action, or alleged more detailed misconduct. Success would require findings contrary to the criminal courts’ findings and would seriously undermine the criminal ruling and conviction. The claimant’s motivation was also immaterial.

6. The fresh evidence exception derived from Phosphate Sewage Co Ltd v Molleson (1879) 4 App Cas 801 requires evidence which transforms the case, meaning a very substantial change to its essential basis. Although the later material was unavailable with reasonable diligence, it merely strengthened evidence of the same general kind and did not transform the case.

1. Court of Appeal Criminal Division: The claimant’s appeal against the criminal proceedings was dismissed on 25 February 2011: [2011] EWCA Crim 184.

2. High Court (Queen’s Bench Division): The civil claims were struck out as an abuse of process under CPR 3.4(2)(b), with judgment for all six defendants.