IN Al Rawi v. Security Service [2010] EWCA Civ 482; [2010] 3 W.L.R. 1069 the Court of Appeal held that there is no common law power to permit a civil action to proceed on a “closed” basis. In the court's opinion, to recognise such a power would be both contrary to fundamental principle and inconsistent with the Civil Procedure Rules.
This powerful endorsement of common law “due process” values arose from the following notorious allegations. The six claimants alleged that the British security agencies had assisted in violation of their civil rights during detention, including periods spent at the USA's detention centre, at Guantanamo Bay, Cuba. The various causes of action pleaded included false imprisonment, trespass to the person, and conspiracy to injure and torture. The defendants wished to defend this action by adopting a parallel system of open and closed proceedings. As for the latter, the court would receive evidence, oral or documentary, and consider representations, without the claimants or their lawyers. Instead the interests of justice would be supported by use of special advocates, although they would not be instructed by the claimants. The process would culminate in two judgments: one which was available for public consumption and a closed judgment available only to the defendants' lawyers and the special advocates.
The present question, posed as a preliminary issue in this action, was whether it is possible for the court to adopt such a procedure, in the absence of statutory permission to do so. The Court of Appeal (Lord Neuberger M.R., giving the judgment of the court, which included Maurice Kay and Sullivan L.JJ.) declared that there is no such common law power. Although the Supreme Court gave permission for final appeal on this issue, the claims were settled by the Government, without any admission of liability (£14 million of payments, as announced to Parliament, 16 November, 2010). The Government must have perceived that the Supreme Court would be unlikely to upset the Court of Appeal's convincing reasoning.
Lord Neuberger M.R. noted (at [14], [16], and [17]) that at least three fundamental procedural points were in issue: the right of due notice, secondly, the right to a properly reasoned decision and, thirdly, the duty to hold hearings in public. The court also noted, at [18], that, in civil litigation, the first of these rights is connected with (i) the principle that each side should adequately encapsulate his claim or defence in pleadings, now known as “statements of case”, and (ii) the exchange of relevant documents during disclosure under C.P.R. Part 31. These procedural institutions enable each side to know the other side's contentions, and to gain access to documents relevant to those issues.
To give the green light to closed proceedings at common law would involve an unprincipled derogation from central tenets of the common law procedural fairness. Expressing the Court's conclusion on this point, Lord Neuberger M.R. said (at [70]) that a closed procedure would conflict with “absolutely fundamental principles (the right to a fair trial and the right to know the reasons for the outcome), initially hard fought for and now well established for over three centuries”. At [30], he noted that the principle of “due notice” “represents an irreducible minimum requirement of an ordinary civil trial”.
The passages just cited are the core of the present decision. But the judgment contains additional reasons. First, the C.P.R. contains provisions permitting closed proceedings for particular types of civil proceedings, as specifically sanctioned by legislation (see [27] to [29], noting C.P.R. Part 76, control orders, and Part 79, financial restriction proceedings, implementing the Prevention of Terrorism Act 2005 and the Counter-Terrorism Act 2008). Against that background, it would be wrong for the court in the present case to find a general basis for closed proceedings outside these special contexts. Secondly, the court's pliable “inherent jurisdiction” (see [37]) cannot be over-stretched to permit departure from fundamental procedural principles, and the same residual jurisdiction cannot be invoked to override statutory rules, such as the “open” elements of procedure embodied in the C.P.R. itself (for example, the rules concerning exchange of statements of case and of relevant documents open for inspection under the disclosure regime). Thirdly, the ex parte procedure governing judicial examination of claims to public interest immunity (“PII”) does not support adoption of a general closed procedure. A special feature of PII challenges is that the court is required, as a last resort, to scrutinise the relevant Minister's claim to immunity against compulsory disclosure. At that stage, as the Court of Appeal noted, it is obvious that relevant information cannot be opened up for public examination in an ordinary hearing: for such openness would destroy the very claim that, even if it is relevant to the facts of the civil action, the information is so sensitive that it should not be publicly divulged during that civil process (see [48]). Fourthly, the Court of Appeal addressed the argument that closed proceedings might be justified if it were apparent that additional relevant evidence would become available in the civil process as a result of adopting that in camera style of proceeding. But this argument failed because such quantitative assessment can only be made once the PII inspection procedure has been conducted. In short, because the closed procedure would be an “add on” (see [54]), it would not achieve any saving in forensic time or expense. Finally, Lord Neuberger M.R. suggested that judgment following closed proceedings would not be perceived as fair and just. If the damages claims were upheld, it would be unsatisfactory that the open judgment would not contain all salient findings of fact (these being secreted in the closed judgment). Conversely, if the claimants lost, the Government's defence would not have been convincingly vindicated, and there would be a legitimate suspicion that the court had failed to deal effectively with the relevant facts. As Lord Neuberger M.R. convincingly said, this would be “a pyrrhic victory for the defendants” (at [56]).
