Civil evidence – Claims – Closed material – Disclosure

Bisher Al Rawi and five others (appellants) v (1) Security Service (2) Secret Intelligence Service (3) Attorney General (4) Foreign and Commonwealth Office (5) Home Office (respondents) and (1) Liberty and Justice (2) Guardian News and Media Ltd (3) Times Newspaper Ltd (4) BBC (intervenors): CA (Civ Div) (Master of the Rolls, Lord Justice Maurice Kay, Lord Justice Sullivan): 4 May 2010

The appellants (X) appealed against a decision ([2009] EWHC 2959 (QB)) that, as a matter of principle, it was open to the court to order a closed material procedure in relation to a civil claim for damages.

X were six individuals who had been detained at various locations, including the US detention facility in Guantanamo Bay. They had made various claims against the respondents (Y) including false imprisonment, trespass to the person, torture and negligence. Y proposed a closed material procedure in which they would be permitted to comply with their obligations for disclosure of documents and rely on pleadings without disclosing them to X if that disclosure would be contrary to the public interest. The disclosure of such closed material would be made to special advocates and, where appropriate, to the court so that parts of the trial and judgment would be open and parts would be closed. X submitted that Y should take the normal approach to claiming public interest immunity. Y argued that a closed material procedure would be more likely to achieve a fair result because the court would be able to rely on relevant material which would be excluded altogether under the public interest immunity procedure and that the case would be brought to trial more expeditiously.

Held: (1) It was not open to a court to order a closed material procedure in relation to the trial of an ordinary civil claim. The principle that a litigant should be able to see and hear all the evidence seen and heard by the court determining his case was so fundamental that, in the absence of parliamentary authority, no judge should override it in relation to an ordinary civil claim. A litigant’s right to disclosure of documents was not a fundamental right in the same way as the right to know the evidence and argument presented to the judge and the reasons for the judge’s decision, and if public interest immunity was claimed in respect of a relevant document, the trial process itself was not impugned since none of the parties could rely on that document. That could not be said where the trial was conducted through a closed material procedure. Different considerations might apply where the proceedings did not only concern the interests of the parties but also had a significant effect on a vulnerable third party or the wider public interest. However, those considerations could not apply to the instant proceedings where the judge would be called upon to sit purely as an arbiter between the parties and no ‘triangulation of interests’ would be involved, Official Solicitor v K [1965] AC 201 HL and R (on the application of Roberts) v Parole Board [2005] UKHL 45, (2005) 2 AC 738 considered. Although the court had inherent jurisdiction to develop the common law, the course proposed by Y would involve not merely altering the rules of evidence as they applied to any proceedings, under paragraph 4 of schedule 1 to the Civil Procedure Act 1997, but altering the fundamental principles of the law, Scott v Scott [1913] AC 417 HL and R v Davis (Iain) [2008] UKHL 36, [2008] 1 AC 1128 followed.

(2) Even if it had been open to the court to adopt a closed material procedure, it had no jurisdiction to do so in light of the Civil Procedure Rules with which the closed material procedure was not compatible, Raja v Van Hoogstraten [2008] EWCA Civ 1444, [2009] 1 WLR 1143 applied. The provisions regarding the preparation and service of a defence were inconsistent with the notion of a closed defence. Although the extent of any disclosure by the court was a matter of discretion, the overriding objective required the court to deal with cases fairly and to ensure as far as possible that the parties were on an equal footing. The same point could be made about the general rule that evidence should be given orally at trial and in relation to service of witness statements. Further, CPR 39.2(3), which set out exceptions to the general rule that hearings were to be in public, made no such qualifications in relation to statements of case, disclosure, inspection or witness statements or to evidence and argument being given and heard in the presence of all parties.

(3) In deciding whether a closed material procedure would better enable it to deal justly with a case, the court would have to consider a range of factors such as the significance of the material that would otherwise have to be excluded and the closed material procedure would be capable of being more likely to achieve a fair result. However, it would not avoid the need to carry out the public interest immunity exercise, and if Y were suggesting that the closed material procedure was to be adopted without first carrying out the public interest immunity procedure, material which would not be excluded from the trial process on a traditional public interest immunity procedure would not be disclosed to the claimants but would be considered by the court in closed session, to the claimant's obvious disadvantage.

(4) The question was left open of whether a closed material procedure could properly be adopted in an ordinary civil claim where all the parties agreed or where there was a substantial public interest dimension.

Appeal allowed.

Dinah Rose QC, Richard Hermer QC, Charlotte Kilroy (instructed by Birnberg Peirce & Co) for the first to fourth appellants; Leigh Day & Co for the fifth appellant: Michael Fordham QC, Naina Patel (instructed by Christian Khan) for the sixth appellant; Jonathan Crow QC, Rory Phillips QC, Daniel Beard, Karen Steyn (instructed by Treasury Solicitor) for the respondents; John Howell QC, Jessica Boyd for the first and second interveners; Guy Vassall-Adams for the third to fifth interveners.