Abuzid Ammar Almabrook Elbuzidi & Anor v The Foreign, Commonwealth and Development Office & Ors [2026] EWHC 1496 (KB)

[2026] EWHC 1496 (KB)Case No QB-2021-002833
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London WC2A 2LLDate 18 June 2026
Before
MR JUSTICE JAY
Between
ABUZID AMMAR ALMABROOK ELBUZIDIClaimantALMAHDI ABDULHAMEED ALMAHDI ALHARATIClaimant- and –
Between
THE FOREIGN, COMMONWEALTH AND DEVELOPMENT OFFICEDefendantTHE HOME OFFICEDefendantTHE ATTORNEY GENERALDefendantHelen Law KC and Anirudh Mathur (instructed by Leigh Day) for ClaimantsNeil Sheldon KC, Steven Gray KC, Thomas O’Donohoe and Jonathan Worboys (instructed by Government Legal Department) for DefendantsJennifer Carter-Manning KC and Rachel Toney (assisted by SASO CLOSED) acted as Special AdvocatesHearing date (OPEN): 30 April 2026
Approved OPEN JudgmentThis judgment was handed down remotely at 10.30am on 18 June 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.MR JUSTICE JAY:

Introduction

[1]Originally, there were three issues to be resolved at this CMC.[2]Issue 1 is the resolution of outstanding disputes between the parties regarding the Defendants’ Disclosure Frameworks, both in OPEN (“AODF”) and in CLOSED (“CDF”). The difference in acronyms reflect the fact that the ODF has been amended.[3]Issue 2 is directions for disclosure and case management. It has been agreed that I should rule on Issue 2, if the parties cannot agree on a timetable, after the parties have been able to consider my judgment on Issue 1. I will do that on written submissions.[4]Issue 3 is the resolution of the Defendants’ s. 8 JSA 2013 application in relation to the CLOSED Defence. That issue has now been resolved.

The Claims

[5]Both Claimants allege that they were detained and tortured by the Egyptian security services (“ESS”) in Cairo between 27 August and 9 September 2007. It is alleged that MI5 and/or MI6 (“BSS”) shared intelligence with, and sought intelligence from, both the Libyan Security Services (“LSS”) and the ESS which caused or materially contributed to their unlawful detention and torture. Put in these simple and bald terms, it may immediately be seen that these claims are similar to other claims which have been brought against HMG arising out of alleged conduct by BSS between approximately 2004 and 2010.[6]In order to plead their cases, the Claimants have relied on what Ms Helen Law KC called the “Tripoli cache”. These were documents found in Tripoli after the fall of the Qaddafi regime. The Defendants can neither confirm nor deny that the documents are authentic.[7]Relying on these documents, which on any view are incomplete, the Claimants say that “at all material times”, which as far as they are aware started in January 2006, there was “close liaison, collaboration, and regular intelligence sharing between the BSS, LSS and ESS” which both included and went beyond the two of them. At para 46 of the Amended Particulars of Claim, it is alleged that the Defendants knew or ought to have known that there was “a risk that the intelligence the BSS provided to the LSS in respect of the Claimants, including the information as to their whereabouts and movements in Cairo, would be provided to the ESS”; and at para 79 it is alleged that there was a concomitant risk of detention and torture. Para 89 alleges that the Defendants knew that torture was endemic in Libya and in Egypt, and there was a real risk that the Claimants would be tortured in either of those countries if detained there.[8]These risks are not addressed by the Defendants in their Defence. In the gist that has recently been provided their relevance is “refuted”. This is because, it is said, the claim is for alleged mistreatment at the hands of the ESS and not the LSS. I also note what is said at paras 16 and 28 of the Defence.[9]The Defendants are fully entitled to take the position they have, but as Ms Law said in oral argument, that does carry with it certain consequences.

Authorities

[10]Very sensibly, given that everyone concerned with this case knows the law, I was taken only to two salient authorities. I have checked the Authorities Bundle in case there was anything else of potential relevance (in the sense of being new to me) but I found nothing.[11]Alame v Shell PLC [2024] EWCA Civ 1500; [2025] Env. L.R. 17 sets out principles of general application in relation to a party’s disclosure obligations where that party has a considerable quantity of relevant information not available to the other. As Stuart-Smith LJ explained:
“82. … I agree that in cases where there is a significant asymmetry of information between a claimant and a defendant, “the process of disclosure is one of the most powerful tools available for achieving justice”; and “if the scope of disclosure is too tightly confined by the specific facts that the claimant has been able to plead, the claimant may simply be unable to obtain the material that it needs to plead and make out its case.”
[12]At para 102, Bean LJ stated that in situations where there is a substantial inequality of arms, the overriding objective operates to ensure that so far as is practicable the parties are placed on an equal footing.[13]Mr Neil Sheldon KC for the Defendants submitted that Alame was not a case involving a CMP. That is true, but it is not an answer. Here, the Claimants will always be at a forensic disadvantage because many highly material documents will be hidden from them. There is the added disadvantage, to which Alame is relevant, that the Defendants possess documents bearing on the core issues which the Claimants do not. The “Tripoli cache” does not surmount that disadvantage because the authenticity of the documents is NCND’d. It follows that the Court should ensure that this asymmetry is balanced out as far as possible, even if the Court is fully aware that many documents once disclosed will have to remain in CLOSED. I also accept a submission made by Ms Jennifer Carter-Manning KC in CLOSED, but as to which I see no reason why it should not be set out in OPEN, that there are limits as to what the Special Advocates can do.[14]These things having been said, Alame should not in my view be used to override the provisions of CPR Part 31.5(7) and Part 31.7, to which I will be coming in due course. Furthermore, although this is an important case involving allegations of torture in which HMG is said to be implicated, I must always have regard to proportionality. That is a somewhat fluid concept which takes into account all relevant circumstances including the issues at stake; the fact that HMG is being sued; the fact that HMG is at a forensic advantage because it holds documents capable of illuminating what is pleaded, whereas the Claimants do not; and overall resource considerations, including the fact that the “dividend” (Mr Sheldon’s term) or “juice of the lemon” (mine) reduces very considerably after a couple of hard squeezes.[15]The second authority of which I was reminded was my decision in Kamoka and others v The Security Service and others [2019] EWHC 2283 (QB). Although there was a larger number of claimants traversing a range of causes of actions, the issues raised in the cases of C7-9 were broadly similar to those arising in the present case. It follows that I reject Mr Sheldon’s submission that Kamoka is not relevant. In my judgment, in harmony with Kamoka to the extent that I have indicated, the present case is pleaded on the basis of a “systems failure” and/or similar fact evidence. Accordingly, what I said in Kamoka under paras 11, 12 and 18 remains relevant, although I continue to bear in mind what I also said about proportionality, degrees of relevance, and the law of diminishing returns.

Categories of Documents

[16]The parties are agreed that the documents to be disclosed fall into three categories. Disclosure Category 1 covers what is described as “name searches”. Disclosure Category 2 covers “policies”. Disclosure Category 3 covers “Defendants’ knowledge of the risk of detention by ESS”.[17]The issues in relation to Category 1 are relatively straightforward, and many of them can only be addressed in CLOSED. It is convenient at this stage to set out the position to the extent to which I am able in this OPEN judgment. I do so with reference to paragraph numbers in the Defendants’ skeleton argument.[18]Para 14: the Defendants now agree that GCHQ is covered.[19]Para 15: this is a CLOSED issue. For reasons set out briefly in my CLOSED judgment, I agree with the Defendants.[20]Paras 16 and 21: this is a CLOSED issue. Ditto.[21]Paras 17-19: the Defendants now agree to search passport numbers. To search dates of birth would be disproportionate, as would “number 2” and “number 29”.[22]Para 25: there is no need for searches to be conducted of the Cabinet Office and the AGO. All relevant documents would be held by other named departments whose records will be searched.[23]Para 28(5): during the hearing, Mr Sheldon notionally amended para 28(5). Instead of “will consider asking” in the final sentence, the Defendants accept that they “will ask”. This applies not just to para 28(5) but more generally. In my view, this was a helpful concession.[24]Para 29: this is a purely CLOSED issue. I have now understood the position in relation to “corporate records”. My reasons are set out briefly in my CLOSED judgment, and one way or another, the Claimants are not disadvantaged.[25]Paras 30 and 31: FCDO and Home Office searches. In relation to the FCDO and Home Office searches, the Special Advocates did not make submissions in CLOSED against the approach proposed by the Defendants. The Court agreed with the course proposed and set out reasons in CLOSED.[26]Mr Sheldon submitted in CLOSED that what may be described as the “Libyan detention risk” is not directly relevant to the claim, because the Claimants were not in fact detained by the Libyans. To the extent that the LSS might have been keen to see enemies of the Libyan regime incarcerated and tortured in Egypt, that issue is captured, submitted Mr Sheldon, by the “Libyan Dissemination Risk” (defined more fully below); and the Defendants accept that their disclosure obligations relate to that.[27]Mr Sheldon also submitted in CLOSED that it was sufficient to begin the disclosure exercise in relation to the Category 1 documents on 1 June 2006, and that in relation to Category 3 any documents bearing on the “Libyan Dissemination Risk” were all that were needed to be disclosed – both in principle and on the application of a proportionate approach. Separately, he submitted that it was unnecessary and wrong in principle to interrogate the 40,000 or so documents that were held by the ISC. This was because the case reviews underpinning the ISC and Gibson reports would highly likely reveal a sufficient corpus of information and inferential knowledge for the Claimants’ purposes. Mr Sheldon did not dispute that relevant parts of the ISC and Gibson reports, and the four internal reviews, should be disclosed, as appropriate, in OPEN (where possible) and in CLOSED.[28]Para 32: name searches in relation to documentation provided to Inquiries. I agree with what the Defendants say here.[29]As for Category 2, the Defendants’ skeleton argument stated that disclosure would be given of MI5, MI6 and GCHQ policy documents covering the period June 2006 to December 2007. It was clarified in oral argument that this meant, “policies applicable in that period”, even if they may have been promulgated earlier. In my view, that makes good sense. Mr Sheldon accepted during the hearing that he saw the force of the Claimants’ argument that the FCDO and the Home Office should be invited to search for policies in relation to the same issues. I also see the force of that, and rule that the DFs should make appropriate provision. It is unnecessary for any AGO, Cabinet Office and No 10 policies to be disclosed, assuming that there were any.[30]Thus, the only outstanding issue concerning Category 2 documents relates to the start- and end-dates. These should match the dates for Category 1.[31]The main area of controversy concerns the Category 3 documents. Mr Sheldon’s skeleton argument identified three different types of risk (although, on analysis, I would hold that these are not self-contained categories), viz.:(1) the risk that intelligence which BSS allegedly provided to LSS at any relevant time My addition would be passed on by LSS to ESS (“the LSS Dissemination Risk”),(2) the risk that the Claimants would be detained by ESS as a result of the provision of intelligence about them from BSS and/or LSS at any relevant time (“the ESS Detention Risk”), and(3) the risk that, if detained on the basis of that intelligence, the Claimants would be held in incommunicado detention and tortured (“the ESS Mistreatment Risk”).[32]There was much discussion during the hearing about what may be described as the “LSS Detention/Mistreatment Risk”. I have covered this issue in my CLOSED judgment and a gist of my conclusion appears at para 45 below. At this stage, all that I need say is that the Claimants were detained in Egypt and not in Libya.[33]The issues between the parties in relation to the Category 3 documents may be encapsulated in these terms. The Claimants seek searches of the 40,000 documents which were considered by the Intelligence and Security Committee of Parliament (“the ISC”) for the purposes of their reports, and which – the Claimants say – are readily obtainable and reviewable. The Defendants now go further than the existing text of AODF Category 3 and suggest a form of wording, justified further by two footnotes, which is set out in para 40 of their skeleton argument.

Submissions

[34]In relation to Category 1 documents, Ms Law submitted that the date range should be 1 January 2004 to 31 December 2008. She submitted that it is unlikely that the Tripoli cache, which begins for these purposes in June 2006, represents the true position. She submitted that the inference of intelligence sharing earlier is supported by references to “joint work”, and that it is likely that the BSS’s interest in the Claimants went back to at least 2004, if not earlier. As for the end-date, Ms Law drew my attention to a document dated January 2008 which relates, if it be authentic, to the Claimants. She submitted that it is inherently probable that there were communications relating to both Claimants after their detention had concluded.[35]In relation to the Category 3 documents, Ms Law submitted that I should go further than the Defendants now propose.[36]The Gibson Inquiry reported in December 2013. According to para 1.25 of the Introduction, in all the Inquiry received over 20,000 documents, the vast majority of which “have been indexed by the Inquiry and stored electronically and securely on a searchable database”. I have not been informed whether this resource is still available.[37]As for the ISC, it reported in June 2018. According to the Executive Summary:
“The Report details the findings of the Intelligence and Security Committee’s Inquiry into the actions of the UK Agencies and Defence Intelligence in respect of detainees and also rendition. We have taken 50 hours of oral evidence, reviewed 30,000 original documents and a further 10,000 documents we have requested, and 30,000 staff hours have been devoted to this Inquiry. …”
[38]Annex B, the ISC Inquiry Timeline, suggests that the Gibson Inquiry provided to the ISC “over 30,000 highly classified documents”. There is a mismatch here with the 20,000 documents referred to under para 36 above.[39]Ms Law submitted that the Defendants should search these 40,000 documents (if that be the correct number), currently in the possession of the ISC but presumably easily obtainable by the Defendants, with a view to identifying documents relevant to the current claims. I would add that it is immediately apparent from the Gibson and ISC reports that the focus of inquiry went far beyond Libya and Egypt.[40]Mr Sheldon advanced a number of helpful submissions in expansion of his skeleton argument, which I have of course studied carefully. Much of what he submitted was constrained by the OPEN/CLOSED divide. In short, he submitted that it was unnecessary to travel outside the date range proposed by the Defendants (in relation to the Category 1 documentation) and that it would be disproportionate to go further than what has now been set out in his skeleton argument (which goes further than the AODF).

Discussion and Conclusions

[41]As urged by Mr Sheldon, I continue to hold in mind the terms of CPR r. 31.5(7) (which is about the overriding objective and proportionality) and r. 31.7 (which is about the duty to search). I am not convinced that any issue really arises in the context of the duty to search. This is because most of the documents in dispute are currently held by the ISC and will presumably be returned by them to the BSS upon request.[42]There remain three issues for my ruling.[43]The first issue to determine is the date range for the Category 1 documents. The start-date raises a CLOSED issue inasmuch as the NCND status of the Tripoli cache is maintained. For the reasons set out in my CLOSED judgment, I consider that it is reasonable and proportionate to begin on 1 January 2006.[44]The end-date was not the subject of any CLOSED submissions. If, which is NCND’d, there was intelligence sharing on the tripartite basis suggested, I see the force of the submission that there may have been post-detention interactions. Those would not have continued for any lengthy period. There can be no precision about this, and I am ruling that the appropriate end-date should be 31 January 2008.[45]The second issue concerns disclosure of documents bearing on the Libyan detention risk. I agree with Mr Sheldon that disclosure is not required in relation to this. I have reached that conclusion for two reasons. First, the issue is sufficiently captured within the envelope of the “Libyan Dissemination Risk”. Secondly, there is a mass of material in OPEN showing that the Qaddafi regime tortured its political opponents. If the Defendants wish to contend otherwise, the onus is on them to disprove this.[46]The third issue is whether the Defendants at this stage should be required to examine the 40,000 or so documents held by the ISC for material which may be relevant to these claims.[47]The Defendants’ current position is as follows:
“12. The Defendants will review the product (i.e. the output) of the [four] UKIC detainee reviews conducted between 2009 and 2014, an explanation of which is set out at Appendix 1 to this ODF (“the UKIC reviews”) by reference to (a) the Claimants’ names and (b) the Risk Issues, and disclose into CLOSED any such product relating to (a) and/or (b). 13. The Defendants will review the CLOSED Report of the Detainee (Gibson) Inquiry by reference to (a) the Claimants’ names, and (b) the Risk Issues, and disclose into CLOSED any content of those reports relating to (a) and/or (b). 14.

(b) ”

[48]The explanation of the UKIC reviews at AODF Appendix 1 makes clear that these reviews covered “all detainee cases on which MI5 held information where MI5 had involvement other than interviewing and cases believed to have treatment issues in which MI5 were not involved; all reviewed cases were written up; ensuring that the facts of all detainee cases since 9/11 involving rendition, detention and mistreatment issues are known and properly understood; whether BSS was involved in, knew of or was complicit in the treatment of detainees; all cases that give rise to potential legal or reputational concern” The citation comes from FN 37 of the Defendants’ OPEN skeleton argument. .[49]According to FN 38 of the Defendants’ skeleton argument, the ISC report records that for the purposes of the UKIC reviews MI5 examined 74,000 documents in all, and identified 219 cases of which 12 raised particular concerns. MI6 examined 137,000 documents, and identified 102 cases of which 14 raised particular concerns. MI6 then examined a further 301,000 documents, and identified 240 cases of which 20 raised significant concerns.[50]Mr Sheldon’s skeleton argument does not offer to disclose any of the underlying documentation referred to at para 46 above. What is proposed is disclosure of the reports of Gibson and the ISC, and of the product of the four UKIC detainee reviews, insofar as they are relevant. Mr Sheldon did not specify in OPEN how many cases were/are covered by the four UKIC detainee reviews, but he did tell me in CLOSED. That was a valuable exercise.[51]It may well be that the Defendants’ proposed disclosure exercise goes far enough for the Claimants’ present purposes, but the distinct possibility remains that it does not. In my judgment, it is appropriate to take a phased or staged approach in line with the overriding objective.[52]The first stage should not take very long. It may be limited to the exercise set out at para 40 of the Defendants’ skeleton argument. The Defendants must also consider what can properly be released into OPEN. I would then propose to hold a further CMC, to be conducted largely in CLOSED, which is designed to test the Defendants’ assertion that what has been produced by this disclosure exercise is sufficient to do justice in this case. If I form the view that it is insufficient, the next step would be for me to consider ordering the disclosure of some or all of the underlying material referred to in the footnotes. There would then be another CMC, and the final stage would be to consider disclosure of some or all of the underlying documents (i.e. the 40,000 documents) held by the ISC. In the meantime, the Defendants should(a) ascertain from the ISC the location of the 40,000 documents,(b) obtain from the ISC its confirmation that the documents will on request be provided and/or returned to the Defendants, preferably electronically, and(c) the existence of any indexes and searchable databases.[53]On a separate topic, Ms Law’s skeleton argument supported the Special Advocates’ request for disclosure of the Op Lydd report(s). I have covered this topic in my CLOSED judgment and have ordered disclosure.[54]The AODF should be re-amended in light of this judgment.