Zubaydah v Foreign, Commonwealth and Development Office and others

The Supreme Court considered which law governs tort claims under Part III of the Private International Law (Miscellaneous Provisions) Act 1995 (PILA) where the claimant alleges he was unlawfully rendered, detained and tortured in a series of foreign "black sites" but that United Kingdom security agencies sent questions to the United States Central Intelligence Agency (CIA) from England which were used in interrogations. The key statutory provisions were section 11 (the general rule that the law of the place where the injury occurred applies) and section 12 (the possibility of displacing that rule where another country’s law is substantially more appropriate).

On the assumed pleaded facts the majority concluded that the general rule under section 11(2)(a) would point to the laws of the six foreign countries where the claimant is said to have sustained injury, but that those connections were greatly weakened because the claimant had been rendered and held involuntarily, the CIA acted to insulate interrogations from local law, the injuries were inflicted by agents of a third state (the United States) and the claimant was held in multiple different countries. By contrast, the UK Services’ relevant acts and omissions occurred in England, were carried out by organs of the UK state acting under UK law and for the perceived benefit of the UK. Taking all factors under section 12 together, the majority held it was substantially more appropriate that English law govern the issues between the parties, and dismissed the defendants’ appeal.

The claimant (Abu Zubaydah) sued UK Government departments on the basis that officials of the Security Service and the Secret Intelligence Service, acting in England and Wales, sent questions to the CIA which the CIA used in interrogations during which the claimant was allegedly tortured at secret CIA sites in six countries. The claim (pleaded in the alternative) was advanced under the law of England and Wales and, alternatively, under the law of the country where each injury was sustained. The claimant sought damages for personal injury (limited to injury sustained while CIA interrogations sought to elicit answers to UK questions), aggravated and exemplary damages.

Procedural path: Lane J (Queen’s Bench Division) determined, on assumed pleaded facts and as a preliminary issue, that the applicable law under the PILA general rule was the law of each of the six countries in which the injuries were alleged to have been sustained ([2021] EWHC 331 (QB)). The Court of Appeal allowed the claimant’s appeal and declared that English law applies ([2022] EWCA Civ 334). The defendants appealed to the Supreme Court.

Issues before the Supreme Court: (i) whether, under section 11(2)(a) and section 12 of the PILA, the law of England and Wales or the laws of each of the six foreign countries is the applicable law; (ii) whether the High Court erred in its approach to the section 12 comparison; and (iii) whether the Court of Appeal was entitled to revisit Lane J’s evaluation.

Court’s reasoning (majority): the court reiterated the statutory framework in sections 11 and 12 and the heavy onus to displace the general rule. It found the High Court had undervalued factors connecting the torts with England (acts and omissions of UK Services were undertaken in England, for the perceived benefit of the UK, by organs subject to UK law), and had placed excessive emphasis on the CIA’s role. The Court of Appeal was also criticised for an overly narrow focus on the UK Services’ wrongful acts as if they were co-extensive with the torts. Applying section 12 afresh the majority held that the significance of the connection with the six foreign countries was materially reduced because the claimant was involuntarily rendered and held, the CIA operated the sites so as to evade local law, the tortious ill‑treatment was carried out by agents of a third state, and the claimant was held in multiple locations. On balance those factors, compared with the substantial connection to England and Wales, led to the conclusion that English law was substantially the more appropriate law to determine the issues.

Dissent: Lord Sales (dissenting) would have held that the laws of the six countries remained the applicable laws because the most significant elements of the torts were the imprisonment and personal injuries inflicted by the CIA in those countries; he considered the general rule should not be displaced on these facts.

Appeal dismissed. The majority concluded that, on the assumed facts, although the general rule under PILA section 11 points to the law of the countries where the claimant sustained his injuries, the connection to those countries was substantially weakened by the claimant’s involuntary rendition, the CIA’s insulation of interrogations from local law, the primary responsibility of CIA agents (agents of a third state) for inflicting the injuries and the multiplicity of locations. By contrast the UK Services’ impugned acts and omissions occurred in England, were taken by UK organs subject to UK law and for the perceived benefit of the UK. On a comparison under section 12 it was therefore substantially more appropriate that the law of England and Wales govern the issues, so the defendants’ appeal was dismissed.

First instance: Lane J, Queen's Bench Division, held the applicable law was the law of each of the six foreign countries ([2021] EWHC 331 (QB); [2021] 4 WLR 39). Court of Appeal: allowed the claimant’s appeal and declared English law applies ([2022] EWCA Civ 334; [2022] 4 WLR 40). Supreme Court: defendants appealed; appeal dismissed ([2023] UKSC 50).