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Courts cannot use secret procedures to hear ordinary civil claims

5 May 2010

Courts cannot order “closed material procedures” when hearing ordinary civil claims, such as for damages or breach of statutory duty, the Court of Appeal has ruled.

Six former Guantanamo Bay prisoners, including Binyam Mohamed, are suing the security services and the government on the grounds that they caused or contributed to their detention, rendition and ill treatment.

The defendants admitted that the men were detained and transferred, but denied liability. Mr Justice Silber at the High Court ruled that it was open to the court to order a closed material procedure in relation to a civil claim for damages.

Giving judgment on behalf of the Court of Appeal in Al Rawi and others v The Security Service and others [2010] EWCA Civ 482, the Master of the Rolls, Lord Neuberger, said: “We have concluded that we should allow this appeal, and that we should say firmly and unambiguously that it is not open to a court in England and Wales, in the absence of statutory power to do so or (arguably) agreement between the parties that the action should proceed on such a basis, to order a closed material procedure in relation to the trial of an ordinary civil claim, such as a claim for damages for tort or breach of statutory duty.

“The primary reason for our conclusion is that, by acceding to the defendants’ argument, the court, while purportedly developing the common law, would in fact be undermining one of its most fundamental principles.

“In addition, even if it would otherwise be a legitimate development of the common law, it would be neither permissible in the light of the Civil Procedure Rules nor practical, in terms of effective case management or costs management, to adopt the defendants’ proposals.”

Lord Neuberger said the principle that a litigant should be able to see and hear all the evidence which is seen and heard by the court was so fundamental, so “embedded in the common law”, that no judge should override it without the sanction of Parliament or agreement of the parties.

“At least so far as the common law is concerned, we would accept the submission that this principle represents an irreducible minimum requirement of an ordinary civil trial,” he said.

“Unlike principles such as open justice, or the right to disclosure of relevant documents, a litigant’s right to know the case against him and to know the reasons why he has lost or won is fundamental to the notion of a fair trial.”

Lord Neuberger went on: “If the court was to conclude after a hearing, much of which had been in closed session, attended by the defendants, but not the claimants or the public, that for reasons, some of which were to be found in a closed judgment that was available to the defendants, but not the claimants or the public, that the claims should be dismissed, there is a substantial risk that the defendants would not be vindicated and that justice would not be seen to have been done.

“The outcome would be likely to be a pyrrhic victory for the defendants, whose reputation would be damaged by such a process, but the damage to the reputation of the court would in all probability be even greater.”

The Master of the Rolls said it was tempting to accept that there may be the odd exceptional ordinary civil claim, where the closed material procedure would be appropriate.

“However, this is one of those cases where it is right for the court to take a clear stand, at least in relation to ordinary civil proceedings.

“Quite apart from the fact that the issue is one of principle, it is a melancholy truth that a procedure or approach which is sanctioned by a court expressly on the basis that it is applicable only in exceptional circumstances nonetheless often becomes common practice.”

Lord Justices Maurice Kay and Sullivan contributed to the judgment.

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