Abuzid Ammar Almabrook Elbuzidi & Anor v The Foreign, Commonwealth and Development Office & Ors

In disclosure disputes involving substantial asymmetry of information, the court should use disclosure to place the parties on an equal footing so far as practicable. That principle operates within the limits of the disclosure rules, the overriding objective and proportionality. Disclosure may address a pleaded systems failure and similar-fact case, but the court must define the relevant categories and time periods with care. A staged approach is appropriate where the sufficiency of initial disclosure remains uncertain. The court should begin with proportionate searches and relevant reports, review their adequacy at a further case management hearing, and only then consider ordering disclosure of underlying material.

The claimants alleged that they were detained and tortured by the Egyptian security services in Cairo in 2007 after intelligence was shared by British security services with Libyan and Egyptian agencies. At a case management conference, the court considered disputes concerning the defendants’ open and closed disclosure frameworks.

The principal issues were the appropriate date range for name searches, whether disclosure should address a risk of detention or mistreatment in Libya, and whether the defendants should immediately examine approximately 40,000 documents considered by the Intelligence and Security Committee. The court also considered the relevance of Alame v Shell PLC and Kamoka and others v The Security Service and others.

1. The court ruled that Category 1 name searches should cover the period from 1 January 2006 to 31 January 2008. The start date was reasonable and proportionate in light of the closed material. The end date allowed for possible post-detention interactions without extending the search indefinitely.

2. Disclosure concerning the alleged Libyan detention risk was not required. The issue was sufficiently captured by the Libyan Dissemination Risk. In addition, open material showed that the Qaddafi regime tortured political opponents; if the defendants wished to contend otherwise, the burden lay on them to disprove it.

3. The court applied the principle in Alame v Shell PLC that substantial inequality of arms and asymmetry of information may require disclosure to place parties on an equal footing so far as practicable: [2024] EWCA Civ 1500. That principle did not override Civil Procedure Rules 1998 Part 31.5(7) and rule 31.7, or the requirement of proportionality.

4. The court treated the claim as pleaded on a systems-failure and/or similar-fact basis, consistently with Kamoka and others v The Security Service and others: [2019] EWHC 2283 (QB). The relevant principles remained subject to relevance, proportionality and diminishing returns.

5. The court adopted a staged approach to the approximately 40,000 ISC documents. The defendants were first required to undertake the proposed searches and disclosure of relevant material from the UKIC reviews and the Gibson and ISC reports, while considering what could be released into open. A further case management conference would determine whether underlying material, and ultimately some or all of the ISC documents, should be disclosed. The open disclosure framework was to be re-amended accordingly.