Barry Manners & Ors v The Cabinet Office & Ors [2026] EWHC 2036 (KB)
[2026] EWHC 2036 (KB)Case No KB-2024-003990
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/07/2026
Before
MR JUSTICE GARNHAM
Between
BARRY MANNERS & OTHERSClaimantsDefendantsAnne Studd KC and David Messling (instructed by McCue Jury & Partners LLP) for ClaimantsMelanie Cumberland KC and Michael Edwards and Anthony Lenanton (instructed by Government Legal Department) for First, Second and Third DefendantsDavid Platt KC and Alexander Macpherson (instructed by Weightmans LLP) for Fourth DefendantHearing Hearing dates: 28 July 2026Approved JudgmentThis judgment was handed down remotely at 2.00pm on 31 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MR JUSTICE GARNHAM
OPEN JUDGMENT
[1]This is my OPEN judgment on the application of the First, Second and Third Government departments (the Government, or HMG, Defendants) for an order that they should not be required to disclose certain relevant documents on the grounds of public interest immunity (“PII”).[2]I had the benefit of written submissions from the Claimants and from the Government Defendants in advance of the hearing. I also heard brief oral submissions earlier today, in OPEN, on behalf of the Claimants from Ms Anne Studd KC, from Mr David Platt KC on behalf of the 4th Defendant, British Airways PLC, and from Ms Melanie Cumberland KC on behalf of HMG Defendants.
The Application and the Response
[3]The PII application is made pursuant to PII certificates issued first by the interim permanent Under Secretary of the FCDO on 16 June 2026 in respect of material originating with the First and Second Defendants, the Cabinet Office and FCDO, and second, by the Minister of State in the Ministry of Defence, Lord Coaker on 23 June 2026, on behalf of the Third Defendants.[4]The background for this application is a claim against HMG by passengers and crew of British Airways flight BA149 as a result of their detention and mistreatment by Iraqi troops following the invasion of Kuwait on 1-2 August 1990.[5]In short summary, the Claimants allege that HMG Defendants failed to heed adequately or at all the sign, signals and warnings that the Iraqi army was likely to invade Kuwait, and to issue appropriate advice to British Airways concerning the need to divert the flight away from Kuwait to ensure the safety of its passengers and crew. The Claimants further assert that HMG intentionally used the aircraft to deploy to Kuwait a team of military, or quasi military personnel, known as “the Increment”.[6]HMG has conducted extensive searches for relevant material, and the PII application covers all the material identified in the course of that disclosure exercise for which an application to withhold is made.[7]The Claimants and the Fourth Defendants urged me to test vigorously HMG’s claim to PII. In particular, both contended that there could be no proper basis for HMG to maintain its refusal to disclose material indicating whether or not there were UK Special Forces on the plane when it arrived in Kuwait.
The Legal Principles
[8]The relevant legal principles are not in dispute.[9]A claim for PII involves an application to exclude relevant material from proceedings on the basis that the public interest in the non-disclosure of sensitive material outweighs the public interest in ensuring a fair trial by its disclosure. It is the role of the Minister, or the PUS, in considering whether to make a claim for PII, to answer the three questions identified in the Chief Constable of West Midland Police ex parte Wiley [1995] 1 AC 274.[10]Those questions are, first, whether the material would fall to be disclosed if it were not subject to a claim for PII. Second, whether the material identified, if disclosed, would create a real risk of serious harm to the public interest. That test is to be vigorously applied focusing specifically on the likelihood and severity of damage which would be caused by disclosure of the relevant information. It will also be necessary to consider whether damage caused by the disclosure could be mitigated by disclosure of the material in confidence or by way of gisting. Third, if there is a real risk of serious harm, the question is whether the public interest in non-disclosure is outweighed by the public interest in the disclosure of the material for the purpose of doing justice in the proceedings.[11]The PUS or Minister has to consider and balance the relevant competing interests and should agree to disclosure if satisfied that the overall public interest favours disclosure. If not so satisfied, the proper course is to produce a certificate to that effect for the assistance of the Court, which is the ultimate decision maker.[12]The most recent statement of the applicable principles for the Court to apply are to be found in the decision of the Supreme Court in The Secretary of State for Northern Ireland [2026] 2 WLR 109. The Court has to balance the public interest which points against disclosure against the aspect of the public interest concerned with the due administration of justice in order to decide whether the evidence should be ordered to be admitted or should be excluded, and whether there is any partial disclosure which could be given, for example, to convey the gist of the information or part of it.
Discussion
[13]Having heard submissions from all parties in the OPEN session I then considered the matter in CLOSED where I heard submissions only from Ms Cumberland. She took me through the documents, in some detail and at considerable length, in respect of which disclosure is resisted, both by reference to schedules prepared by her and by viewing the relevant documents themselves.[14]I am not able in OPEN to reveal anything more about that exercise. However, I now set out my conclusions in the light of it. I conclude that, subject to a number of minor points, there is a significant public interest in excluding all of the withheld information from disclosure in these proceedings. Those minor points will be addressed in the final form of disclosure provided by HMG.[15]I conclude that where the MoD has provided gists that amounts to substantial mitigation in respect of the material not disclosed in full. In respect of the material which HMG says cannot be gisted, I have concluded that no measure short of non-disclosure could properly safeguard the public interest.[16]I considered with particular care the argument that, in the present circumstances, there could be no justification for continuing to withhold documents relevant to whether there were UKSF on the plane. In my view, HMG’s response to this issue, of neither confirming nor denying the involvement of UKSF, was justified. I can say little more in OPEN on that topic beyond observing that the utility and importance of that response depends on maintaining it in all but the most unusual of circumstances.
Conclusion
[17]In those circumstances I hold that the public interest balance weighs in favour of non-disclosure. Accordingly, I allow the application to withhold from disclosure the material which is the subject of this application on grounds of public interest immunity.