Husayn ( Zubaydah) v The Foreign And Commonwealth Office & Ors

Under Part III of the Private International Law (Miscellaneous Provisions) Act 1995, personal-injury claims are generally governed by the law of the country where the injury was sustained. Displacement under section 12 requires a clear preponderance of connecting factors and a showing that it is substantially more appropriate to apply another country’s law. The fact that the alleged conduct was directed or assisted from England, or that the claimant was involuntarily present abroad, does not by itself meet that demanding threshold. Section 14(3)(a)(i) is a narrow public-policy safeguard concerning the content of specific foreign law. It cannot be used to reintroduce section 12 considerations or to avoid procedural consequences of a closed material procedure. The claim was therefore governed by the law of the Six Countries.

The claimant, detained at Guantanamo Bay, alleged that he had been rendered through six countries and subjected to torture and mistreatment at CIA “black sites”. He brought claims against the Foreign and Commonwealth Office, the Home Office and the Attorney General in tort, alleging that United Kingdom intelligence services had supplied questions for use in his interrogations.

The preliminary issue was the applicable law. The parties agreed that section 11(2)(a) of the Private International Law (Miscellaneous Provisions) Act 1995 pointed to the law of the countries where the claimant sustained personal injury. The claimant sought displacement under section 12, or alternatively disapplication of foreign law under section 14(3)(a)(i), including by reference to the possible use of closed material procedures.

1. Applicable-law framework. The court applied Part III of the Private International Law (Miscellaneous Provisions) Act 1995. Under section 11(2)(a), the applicable law for personal-injury claims is ordinarily the law of the country where the claimant was when injured.
2. Section 12 threshold. Displacement requires a comparison of the significance of the factors connecting the tort with the country identified by section 11 and those connecting it with another country. The alternative law must be substantially more appropriate. The threshold is exacting and requires a clear preponderance of relevant factors. The assessment is fact-sensitive, but earlier factual applications are not binding factual precedents.
3. The injuries occurred in the Six Countries, where the CIA personnel who allegedly caused them were physically present. The fact that the sites were operated clandestinely, that the claimant had been taken there involuntarily, or that the defendants may have been indifferent to the locations did not materially reduce the significance of those territorial connections. The pleaded laws of those countries remained legally relevant.
4. The alleged provision of information by SIS and SyS officials in England, the United Kingdom identity of the defendants and the alleged benefit to the United Kingdom were insufficient. Those matters formed only part of the overall conduct, whereas the CIA’s interrogation methods allegedly caused the physical and psychological harm.
5. Section 14. Section 14(3)(a)(i) is a narrow public-policy exception concerned with a specific foreign law that is repugnant to fundamental principles of justice. It cannot be used to reargue the section 12 balance or to make foreign law inapplicable because of the procedural consequences of a closed material procedure.
6. The Justice and Security Act 2013 and CPR rule 82.2(3) provide the framework for addressing difficulties caused by closed material. The applicable-law issue is substantive, not procedural. The claimant’s reliance on section 14 therefore failed. The preliminary issue was determined in favour of the law of the Six Countries.