Zubaydah v Foreign, Commonwealth and Development Office and others

Under section 12 of the Private International Law (Miscellaneous Provisions) Act 1995, the court must compare the significance of the factors connecting the whole tort with the country selected by section 11 and with another country. The tort is not confined to the defendant’s wrongful conduct.

The place of injury may carry greatly reduced significance where a person was involuntarily moved between secret facilities chosen to evade local law, while the defendants were indifferent to those locations. If the relevant acts were performed in England by UK executive agencies exercising public powers for UK purposes, the balance may make English law substantially more appropriate despite the exacting threshold for displacement.

The claimant alleged that UK intelligence services supplied questions to the CIA while knowing that he was being detained and tortured in secret facilities in six countries. His claims included misfeasance in public office, conspiracy, trespass, false imprisonment and negligence. The preliminary issue was whether those claims were governed by the laws of the countries where his injuries occurred or by the law of England and Wales.

Lane J, in [2021] EWHC 331 (QB), applied the laws of the six countries. The Court of Appeal, in [2022] EWCA Civ 334, held that English law applied. The defendants appealed. The central issue was whether section 12 of the Private International Law (Miscellaneous Provisions) Act 1995 displaced the general rule in section 11(2)(a).

1. Appeal dismissed by a majority of four to one. Lord Lloyd-Jones and Lord Stephens gave the majority judgment, with which Lord Kitchin and Lord Burrows agreed. The law of England and Wales was substantially more appropriate than the laws of the six countries and therefore displaced the section 11 general rule.

2. Section 12 requires attention to the torts allegedly committed by the defendants or those for whom they are responsible. The High Court had distorted that assessment by focusing on the CIA’s overall course of conduct and thereby minimising the UK Services’ role. The Court of Appeal also erred, but in the opposite direction, by equating each tort with the UK Services’ wrongful conduct alone. The relevant torts included the CIA conduct which inflicted injury and damage.

3. The place of injury was the principal factor connecting the torts with the six countries, but its significance was massively reduced. The claimant had been rendered involuntarily, did not know where he was held and had no meaningful connection with those countries. The UK Services were indifferent to his location. The secret facilities were deliberately insulated from local law and courts, and their multiplication across six countries further weakened the significance of any one location. The alleged direct tortfeasors were US agents rather than agents of five of the six countries.

4. Substantial factors connected the torts with England and Wales. The alleged acts and omissions of the UK Services occurred there, were undertaken for the perceived benefit of the United Kingdom, and were performed by UK executive agencies acting officially under powers conferred by English law. Those agencies and the defendant government bodies were subject to English criminal and public law. Comparing both sides, the claimant established a compelling case that English law was substantially more appropriate.

5. The section 12 assessment is evaluative. An appellate court should intervene only for a clear error of law or a conclusion not reasonably open to the judge. The High Court’s errors met that standard, although the Court of Appeal’s own error required the Supreme Court to perform the assessment afresh.

6. Lord Sales dissented. He considered that Lane J had made no legal error and that, on a fresh assessment, the places of detention, injury and direct CIA conduct strongly connected the torts with the six countries. In his view, the demanding statutory threshold for displacement had not been met.

1. United Kingdom Supreme Court: By a majority of four to one, dismissed the defendants’ appeal and upheld the declaration that the law of England and Wales applied: [2023] UKSC 50.
2. Court of Appeal: Allowed the claimant’s appeal from Lane J and declared that the law of England and Wales applied: [2022] EWCA Civ 334.
3. High Court: Lane J held that the applicable laws were those of the six countries where the claimant allegedly sustained injury: [2021] EWHC 331 (QB).