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

The Court of Appeal held that the law applicable to the claimant's tort claims against United Kingdom state bodies (alleging misfeasance in public office, conspiracy to injure, trespass to the person, false imprisonment and negligence) is the law of England and Wales. The court applied the Private International Law (Miscellaneous Provisions) Act 1995, in particular sections 11 and 12, and concluded that the general rule under section 11 (lex loci delicti) was displaced because the relevant tortious conduct (the Services supplying questions to the CIA in the United Kingdom with knowledge or expectation that torture would be used) was more closely connected to England and Wales.

The court criticised the judge below for focusing on the CIA's conduct overseas rather than on the distinct tort alleged against the United Kingdom Services. It found that the factors connecting the tort to the countries where mistreatment occurred were of minimal significance given the claimant's involuntary presence and the deliberate use of secret sites, whereas the connections to England (the Services' actions occurring in the United Kingdom, their status as UK state agencies acting in the perceived interests of UK national security and the parties' reasonable expectations) were substantial.

Background and parties. The claimant (commonly known as Abu Zubaydah), detained by the United States, alleged that between 2002 and 2006 he was rendered to and held at CIA "black sites" in six countries and subjected to torture and extreme mistreatment. He sued the Foreign and Commonwealth Office, the Home Office and the Attorney General, alleging that United Kingdom intelligence agencies knew of his detention and treatment yet sent questions to the CIA to be used in interrogations. The claimant pleaded English law as the primary applicable law and, in the alternative, the laws of the six countries where mistreatment occurred.

Procedural posture. The issue of the law applicable to the tort claims was ordered to be determined as a preliminary issue. The judge at first instance (Lane J) held that the general rule under section 11 of the Private International Law (Miscellaneous Provisions) Act 1995 applied and that the laws of the six countries where the injuries occurred governed the claims. The claimant appealed.

Nature of the application and relief sought. The preliminary question was whether the claimant's tort claims should be governed by the law of England and Wales or by the laws of the countries where the alleged mistreatment occurred. The underlying relief sought in the substantive claim was tortious liability and associated remedies against the defendants (including vicarious liability).

Issues framed by the court. The court considered (i) the general rule in section 11 of the 1995 Act and its operation for personal injury claims, (ii) whether section 12 displaced that general rule in favour of English law by comparing connecting factors, and (iii) whether section 14 (public policy) affected the applicability of foreign law.

Court's reasoning. The Court of Appeal emphasised that the section 12 exercise must focus on the specific tort alleged and the defendant's wrongful conduct. The court held that the judge below erred by treating the Services' acts as merely a component of the CIA's overseas conduct rather than as an independent tortious act occurring in England. The court found three principal errors: (1) failure to focus on the Services' alleged tort of supplying questions with knowledge or expectation of torture; (2) insufficient weight given to the claimant's lack of voluntary presence and to the fact he was held in legal "black holes," which reduced the significance of the foreign connections; and (3) inadequate consideration of strong connecting factors to England (the Services' acts, their UK status and the reasonable expectations that their conduct would be judged by English law). Applying the structured section 12 comparison, the court concluded it was substantially more appropriate for English law to govern the issues. The court also observed that deciding public policy under section 14 at the preliminary stage would generally be premature, though it did not need to resolve that point because it determined English law applied.

Implications. The decision underscores the requirement under the 1995 Act to concentrate on the defendant's tortious conduct when assessing displacement under section 12 and confirms that in exceptional cases the general rule may be displaced in favour of the forum's law where strong connecting factors exist.

Appeal allowed. The Court of Appeal held that the judge below erred in law by failing to focus on the tort alleged against the United Kingdom Services (the supply of questions from the UK with knowledge or expectation of torture). Applying sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995 with proper regard to the parties' reasonable expectations and the significance of connecting factors, the court declared that the law applicable to the claimant's claims is the law of England and Wales.

Appeal from the High Court of Justice, Queen's Bench Division (Mr Justice Lane) [2021] EWHC 331 (QB) to the Court of Appeal, Civil Division [2022] EWCA Civ 334. The Court of Appeal allowed the claimant's appeal and set aside the first instance order.