Zayn Al-Abidin Muhammad Husayn v The Foreign and Commonwealth Office

Under section 12 of the Private International Law (Miscellaneous Provisions) Act 1995, displacement of the section 11 general rule requires a structured comparison of the factors connecting the alleged tort with each competing country. The court must focus on the defendants’ own alleged wrongful conduct, not on the wider episode or conduct of a different tortfeasor. The general rule is heavily weighted and will be displaced only in a clear case where the alternative law is substantially more appropriate. Reasonable expectations and territoriality are important. Where United Kingdom security services allegedly sent interrogation questions from England, knowing that a detainee would be tortured abroad, the connections with the places of injury could be minimal, while the connections with England could be strong. English law therefore applied.

The claimant alleged that the Security Service and Secret Intelligence Service sent questions to the CIA for use in interrogations while knowing that he was being tortured at CIA detention facilities in six countries. He claimed damages for several torts and contended that English law applied. The High Court, Mr Justice Lane, held that the general rule under the Private International Law (Miscellaneous Provisions) Act 1995 pointed to the laws of the countries where injury occurred and was not displaced: [2021] EWHC 331 (QB). The claimant appealed. The central issue was whether English law or the law of the six countries was substantially more appropriate under section 12, and whether public-policy issues under section 14 could properly be determined at that stage.

1. Appeal allowed. Lord Justice Males gave the judgment, with Lady Justice Thirlwall and Dame Victoria Sharp PQBD agreeing. The High Court order was set aside. The court declared that the law applicable to the claimant’s claim was the law of England and Wales.
2. The court applied section 12 of the Private International Law (Miscellaneous Provisions) Act 1995 through a structured comparison. It was necessary to identify and assess the significance of the factors connecting the alleged tort with the country selected under section 11, then to assess the factors connecting it with the proposed alternative country. The question was whether the alternative law was substantially more appropriate. The general rule was heavily weighted and could be displaced only in a clear case. The parties’ reasonable expectations were an important consideration. The court relied in particular on the approach explained in VTB Capital Plc v Nutritek International Corpn [2013] UKSC 5.
3. The judge had made three errors of law. He had focused on the CIA’s overall treatment of the claimant rather than the alleged tortious conduct of the Services. He had failed to give proper weight to the claimant’s involuntary presence in the six countries, the probable irrelevance or unknown nature of his location to the Services, and the purpose of detaining him outside effective legal systems. He had also undervalued the strong connections with England: the Services’ conduct was likely to have occurred there, was undertaken for United Kingdom national-security purposes, and was conduct of United Kingdom agencies subject to English law.
4. Once the comparison was made from the correct perspective, the connections with the six countries were minimal and the connections with England and Wales were very substantial. It was substantially more appropriate for the alleged conduct of the Services to be judged by English law. The cases relied on by the defendants, including R (Al-Jedda) v Secretary of State for Defence [2006] EWCA Civ 327, Belhaj v Straw [2013] EWHC 4111 (QB), Serdar Mohammed v Ministry of Defence [2014] EWHC 1369 (QB) and Rahmatullah v Ministry of Defence [2019] EWHC 3172 (QB), did not require a different result because each depended on its own facts and legal context.
5. The section 14 public-policy issue did not arise after section 12 had selected English law. The court nevertheless observed that the test was demanding and fact-sensitive. Section 14 was not a backdoor route to English law, and a foreign rule was not necessarily contrary to public policy merely because it deprived the claimant of a remedy available under English law. In the circumstances, it was premature to decide the issue before the foreign law and its application had been properly pleaded.

1. Court of Appeal (Civil Division): Allowed the appeal, set aside the High Court order and declared that the law applicable to the claim was the law of England and Wales: [2022] EWCA Civ 334.
2. High Court of Justice, Queen’s Bench Division: Mr Justice Lane held that the section 11 general rule selected the laws of the countries where the claimant was injured, that section 12 did not displace that rule, and that the foreign laws did not require disapplication on public-policy grounds: [2021] EWHC 331 (QB).