Government cannot keep documents secret in Guantanamo civil claim for damages

The Court of Appeal has held in Al Rawi and Others v The Security Service and Others that it is not open to a court in England and Wales, in the absence of statutory authority, to order a closed material procedure for the trial of a civil claim for damages in tort and breach of statutory duty. The decision overturns a judgment to the contrary made by Silber J last year. Part of the court’s decision follows from an incompatibility between the closed material procedure and the general provisions of the civil procedure rules and would not be reconcilable with the overriding objective in CPR 1.1.

A “closed material procedure” was defined for the purposes of this case as being:

“A procedure in which:-

(a) a party is permitted

(i) to comply with his obligations for disclosure of documents, and (ii) to rely on pleadings and/or written evidence and/or oral evidence without disclosing such material to other parties

if and to the extent that disclosure to them would be contrary to the public interest (such withheld material being known as ‘closed material’); and

(b) disclosure of such closed material is made to special advocates and, where appropriate, the court; and

(c) the court must ensure that such closed material is not disclosed to any other parties or to any other person, save where it is satisfied that such disclosure would not be contrary to the public interest.

For the purposes of this definition, disclosure is contrary to the public interest if it is made contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest.”

The point came before the Court of Appeal as one of general principle, but the parties relied on the facts of claims brought by individuals who were detained, inter alia, at Guantánamo Bay.

The judgment came to my attention from a report in today’s Times . I attempt no analysis of what is an arcane subject, but put it up here in case it is of interest.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
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