Al Rawi & Ors v The Security Service & Ors [2009] EWHC 2959 (QB)

[2009] EWHC 2959 (QB)Case No HQ08X01180Case No HQ08X01413Case No HQ08X01416Case No HQ08X03220Case No HQ08X01686
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18 November 2009
Before
MR JUSTICE SILBER
Between
BISHER AL RAWIClaimantsJAMIL EL BANNAClaimantRICHARD BELMARClaimantOMAR DEGHAYESClaimantMOAZZAM BEGGClaimantBINYAM MOHAMEDClaimantMARTIN MUBANGAClaimant
Timothy Otty QC, Richard Hermer QC and Tom Hickman (instructed by Birnberg Peirce &Co) for First, Second and Fourth ClaimantsMichael Fordham QC and Naina Patel (i)(instructed by Birnberg Peirce & Co) for Third and Fifth Claimants (ii) (instructed by Leigh Day& Co) for the Sixth Claimant and (iii) (instructed by Christian Khan) for the Seventh ClaimantJonathan Crow QC, Karen Steyn, Daniel Beard and Andrew O’Connor (instructed by the Treasury Solicitor) for DefendantsLiberty and Justice, the Interveners, made joint written submissions prepared by Nigel Pleming QC, Eric Metcalfe and Corinna FergusonHearing Hearing dates: 27 and 28 October 2009Further written submissions from counsel for claimants and the defendants submitted on 3 November 2009
Judgment

I Introduction

[1]The issue in this case is whether it could be proper and lawful for a court to order that a “closed material” procedure be adopted in a civil claim for damages. It arises in the present claim, which has been brought against organs of the State by seven former detainees, who have been held by foreign states at various locations including in each case the United States’ detention facility at Guantanamo Bay.[2]The precise preliminary issue, which was ordered on 24 September 2009 for this court’s determination and which was amended by agreement during the course of the hearing, is :- “Could it be lawful and proper for a court to order that a “closed material procedure” (as defined below) be adopted in a civil claim for damages? Definition of “closed material procedure” A “closed material procedure” means a procedure in which:-(a) a party is permitted to (i) comply with his obligations for disclosure of documents, and (ii) rely on pleadings and/or written evidence and/or oral evidence without disclosing such material to other parties if and to the extent that disclosure to them would be contrary to the public interest (such withheld material being known as “closed material”), and(b) disclosure of such closed material is made to Special Advocates and, where appropriate, the court; and(c) the court must ensure that such closed material is not disclosed to any other parties or to any other person, save where it is satisfied that such disclosure would not be contrary to the public interest. For the purposes of this definition, disclosure is contrary to the public interest if it is made contrary to the interests of national security, the international relations of the United Kingdom, the detection and prevention of crime, or in any other circumstances where disclosure is likely to harm the public interest”. In its original form, the preliminary issue contained the words “if satisfied that such a procedure is necessary for the just disposal of the case” after the word “damage” in the third line, but as I have mentioned, those words were deleted by agreement as their meaning was not clear and they did not appear to add anything to the preceding words. Definition of “closed material procedure”

A “closed material procedure” means a procedure in which:-

[3]The claimants with the support of Justice and Liberty, who are Interveners, contend that the preliminary issue has to be answered in the negative because their submission is that “it can never be lawful and proper for a court to impose a “closed material procedure” on a party from whom material is sought to be withheld”. They contend that any problems relating to the disclosure of matters relating to national security could be and must be resolved by using the well-known principles for dealing with claims for Public Interest Immunity (“PII”). The defendants disagree and they contend that the preliminary issue should be answered in the affirmative as a closed material procedure is a lawful and proper course for a court to impose in a civil claim for damages.[4]There are important differences between the PII procedure and the closed material procedure which uses a special advocate. The salient aspects of the PII procedure are that “documents otherwise relevant and liable to production must not be produced if the public interest requires that they should be withheld” (per Viscount Simon LC in Duncan v Cammell Laird & Co [1942] AC 624, 636). The application of the PII test means that with the benefit of submissions from counsel for the State, the court has to weigh the public interest in not disclosing material against the importance of the material to the parties and to the administration of justice. The closed material procedure is different and Sir Anthony Clarke MR described the roles of the special advocate, who is an integral part of this procedure and who represents the party who is not allowed to see the closed material, when he said in AHK v Secretary of State for Home Department [2009] 1 WLR 2049 that: - “38… (4) They are well understood andinclude taking instructions from the claimant, but only before the special advocate sees any of the closed material, considering whether further documents are required and whether gisting is required, discussing the problems with counsel for the Secretary of State, making appropriate submissions to the court and testing and probing the evidence as the special advocate thinks fit”. “59…establishes that the controlee must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. Provided that this requirement is satisfied there can be a fair trial notwithstanding that the controlee is not provided with the detail or the sources of the evidence forming the basis of the allegations”.[5]It is appropriate to mention now three matters relating to the preliminary issue. First, it must be stressed that the fact that a closed material procedure is used does not mean that the claimants will not see any of the material because the special advocate would be required to consider if any of the closed documents should not be withheld from open disclosure to the claimants in the light of the rights of the claimants under the ECHR and at common law and then to make submissions. If a closed material procedure was adopted in a private law claim, it would mean that the court would have to consider how the procedure would have to be modified to ensure that article 6 rights were respected either by following the procedure set out in AF (supra) or otherwise. After all any court adopting the closed material procedure in a private law claim for damages would have an obligation to ensure that the rights of litigants as set out in the ECHR are respected which is after all what the House of Lords did in AF (supra). The admirable submissions of counsel for the claimants did not appear to appreciate this point.[6]Second, it is unfortunate that the preliminary issue did not include consideration of first whether the closed material procedure should be used in the present case or second the precise workings of the anticipated closed material procedure. Third, this is very complicated litigation with the defendants’ solicitor stating in a witness statement dated 28 October 2009 that the results of the defendant’s work to date are that “now over 250,000 documents identified as potentially relevant, each document often comprising many pages” (5th witness statement of David Mackie made on 28 October 2009, paragraph 3). As I will explain, there are said to be many sensitive documents which may or will raise PII issues.

II The Issues

[7]As the issue in this case is a stark question of law, an understanding of the detailed background to these claims is unnecessary but as is well known, each of the claimants has been the subject of detention by foreign states at various locations including at the notorious United States detention facility at Guantanamo Bay. Each of the claimants now seeks damages in relation to the alleged acts or omissions of the Security Service, the Secret Intelligence Service, the Foreign & Commonwealth Office and the Home Office with the Attorney-General being sued only in a representative capacity.[8]The thrust of the claims is that each of the defendants is alleged to have caused or contributed to the detention of each claimant and his alleged ill-treatment by foreign authorities. The case for each claimant is that he was subjected to unlawful extraordinary rendition, to torture and to inhuman and degrading treatment during the course of his detention. It is said by the claimants that none of them has ever been involved in terrorism. The defendants deny each of these allegations.[9]The causes of action are not identical in each case but for the purpose of this judgment, they can be summarised as including claims for false imprisonment, for trespass to the person, for conspiracy to use unlawful means, for conspiracy to injure, for torture, for breach of contract, for negligence, for misfeasance in public office and for breach of the Human Rights Act 1998. There are also allegations that the Security and Intelligence Services, who are the first and second defendants, are joint tortfeasors with the foreign states, who are alleged to have unlawfully detained and mistreated the claimants.[10]The parties are agreed on the importance of open justice and it is common ground that: (a). As Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417 said (i) at 477-478 that “there is no greater danger of usurpation than that which proceeds little by little, under cover of rules of procedure and at the instance of Judges themselves” and later(ii) at page 485 that “the policy of widening the area of secrecy is always a serious one; but this is for Parliament, and those to whom the subject has been consigned by parliament, to consider”; (b). “the principle of open justice, whether in the Court of Appeal, or the Court of Trial, is so fundamental that supporting citation of authority is not required” per Sir Igor Judge P (as he then was) in R v Crown Court at the Central Criminal Court ex parte A [2004] EWCA Crim 4 [32]; (c). “[t]he best way of producing a fair trial is to ensure that a party to it has the fullest information of both the allegations that are made against him and the evidence relied on in support of those allegations” (Secretary of State for the Home Department v AF and Others [2009] 3 WLR 74 [24] per Lord Phillips of Worth Maltravers); and that (d). One of the overriding objectives of the Civil Procedure Rules (“CPR”) is that of “ensuring that the parties are on an equal footing” (CPR 1.1 (2)).[11]The case for the claimants is that a closed material procedure should not be adopted because(a) it is inconsistent with principle and authority;(b) it is inconsistent with the well-established law of PII;(c) it is inconsistent with certain provisions of the CPR and the Crown Proceedings Act 1947 (“CPA”); and(d) the court would be acting unconstitutionally if it adopted a closed material procedure as it would be acting as a legislator and a rule-maker by devising a new legal framework instead of and in place of the well-established principles for the trial of civil damages claims as set out in the CPR.[12]The case for the defendants is first that the use in cases such as the present one of the closed material procedure with a Special Advocate is supported by authority and second that it is not inconsistent with the CPR or the established principles of PII. A claim of PII means that such documents are immune from production and use by either party when the public interest in disclosure is outweighed by the risk of harm to the public interest if the documents were disclosed. The consequence is that the documents covered by PII cannot be used by either party and this contrasts with the proposed closed material procedure by which the court would be able to see and rely on such relevant material with the assistance of special advocates, who would have to take account of the rights of the claimants under the ECHR and at common law.[13]Both sides rely on a series of authorities which they contend support their respective contentions and undermine those of their opponents.[14]I propose to consider the issues in the following ordera. A. Do the defendants’ authorities justify the use of the closed material procedure in this case or in any claim for damages? (See paragraphs 15 to 54 below);b. B. Do the claimants’ cases preclude the use of the closed material procedure in this case or in any claim for damages? (See paragraphs 55 to 70 below);c. C. Do the rules on PII preclude the use of the closed material procedure in this case or in any claim for damages? (See paragraphs 71 to 76 below);d. D. Do the provisions in the CPR or in the CPA preclude the use of the closed material procedure in this case or in any claim for damages? (See paragraphs 77 to 85 below);e. E. Is the use of the closed material procedure in this case or in any claim for damages an impermissible form of judicial innovation? (See paragraphs 86 to 90 below);f. F. What conclusions should I reach? (See paragraphs 91 to 96 below);[15]Mr Jonathan Crow QC, counsel for the defendants, contends that the High Court possesses an inherent jurisdiction at common law to control its own proceedings, as it is the master of its own procedure subject only to any limitations imposed by statute. I accept the written submission of Justice and Liberty as joint interveners when they contend as was explained by Alderson B in Cocker v Tempest (1841) 7M & W502 at 503-504 “the exercise of the power [of each court over its own process] is certainly a matter for the most careful discretion.” This power although unlimited is not unqualified but in the words of Lord Diplock in Bremer Vulcan v South India Shipping [1981] AC 909 at 977 C-H the purpose of “the general power to control its own procedure serves to prevent its being used to achieve injustice”.[16]The earliest case relied on by Mr Crow is Secretary of State for the Home Department v Rehman [2003] 1 AC 153 in which there was an appeal from a decision of the Special Immigration Appeals Commission (“SIAC”), which was a statutory body set up by the Special Immigration Appeals Commission Act 1997 (“the 1997 Act”) which authorised at its hearings the use of a special advocate in a closed procedure (s6 of the 1997 Act).[17]In giving the judgment of the Court of Appeal, Lord Woolf MR explained at page 164h that :- “31. The 1997 Act makes no provision for a special advocate on an appeal. However, it seemed to us that, if it was necessary for the court in order to dispose justly of the appeal to hear submissions in the absence of [the applicant] and his counsel, under the inherent jurisdiction of the court, counsel instructed by the Treasury Solicitor, with the agreement of the Attorney General, would be able to perform a similar role to a special advocate without the advantage of statutory backing for this being done. A court will only hear submissions on a substantive appeal in the absence of a party in the most extreme circumstances. However, considerations of national security can create situations where this is necessary. If this happens, the court should use its inherent power to reduce the risk of prejudice to the absent party so far as possible and, by analogy with the 1997 Act, [counsel] could certainly then have provided assistance”.[18]The applicant appealed unsuccessfully to the House of Lords but nothing was said in the speeches of the Appellate Committee in relation to the use or adoption of a special advocate procedure. Mr Michael Fordham QC (who together with Mr. Timothy Otty QC made oral submissions on behalf of the claimants) contends that a crucial feature in the Rehman case was that it was an appeal from a statutory authority where the use of special advocates had been expressly sanctioned by Parliament but it had not made any provision for the procedure to be adopted on appeal. I am unable to accept this submission that the approach in Rehman (supra) was not of more general application for three reasons.[19]First, the reason why the Court of Appeal permitted the use of the special advocate procedure was not simply because it had been allowed below because of the statutory provisions. On the contrary, the basis upon which the Court of Appeal allowed a special advocate, was as Lord Woolf explained, for a more general reason which was “to dispose justly of the appeal [and] to reduce the risk of prejudice to the absent party” and not on account of the procedure permitted by SIAC. Second, the test advocated by Lord Woolf “in the most extreme circumstances” and where “considerations of national security can create situations where this is necessary” do not reflect the words used in section 6 of the 1997 Act as justifying the use of special advocates, which are that “The relevant law officer may appoint a person to represent…”. Third, and perhaps most importantly as I will explain in paragraphs 21 and 27 below, when Lord Woolf’s comments in Rehman were subsequently cited by Lord Bingham, he considered them to be of general application and not to be limited to appeals from SIAC. Similarly Dyson LJ giving the judgment of the Divisional Court in Shiv Malik v Manchester Crown Court [2008] EWHC 1362; [2008] 4 ALL ER 403 took a similar approach as I will explain in paragraph 40 below.[20]The reference to the special advocate appearing “in a similar role” to the “special advocate below” was not on the basis that just because there had been a special advocate in SIAC below, it automatically followed that there would have to be one on appeal. I therefore regard the reasoning of Lord Woolf to be setting out the general principle for permitting the use of the closed material procedure with special advocates and it would be wrong to regard his approach to the closed material procedure as being somehow limited to appeals from SIAC.[21]Mr Crow also relies on the comments made in R v Shayler [2003] 1 AC 247 which was a case which the appellant had been charged with making unauthorised disclosures in breach of the Official Secrets Act 1989. Issues in the appeal related to the appellant’s right to obtain authorisation to make disclosures and his right to challenge in judicial review proceedings any refusal to give authorisation. Lord Bingham of Cornhill in a speech with which other members of the Appellate Committee agreed said at page 274E that:- “34… if, at the hearing of an application for judicial review. it were necessary for the court to examine material said to be too sensitive to be disclosed to the former member’s legal advisors, special arrangements could be made for the appointment of counsel to represent the applicant’s interest as envisaged by the Court of Appeal in [Rehman]”.[22]Justice and Liberty’s joint written submissions contend that this case did not involve the appointment of a special advocate but the comments in it relate to the possibility of a special advocate being appointed by the High Court in proceedings for a judicial review. This point was developed by Mr. Otty in his oral submissions when he gave examples of the differences between a judicial review claim and a private law claim which were first that there is a requirement for permission in a judicial review claim but not in a private law claim, second that the rules for pleadings in private law claim do not apply to a judicial review claim, third that the rules on disclosure are different in a judicial review claim from that for a private law claim and finally that the tests applied by the court in a private claim are different from those in a judicial review claim.[23]I readily accept that these differences and others exist between judicial review and private law claims but in my view they are not of any relevance or significance to the question raised in the preliminary issue because for the purpose of deciding whether a closed procedure was appropriate, it did not matter that the Appellate Committee was considering judicial review proceedings for four reasons. First, there is no reason of principle why the approach and reasoning of Lord Bingham would not apply also to a damages claim because in both cases the court was trying to reach a just result. A party to a judicial review application against whom a closed material procedure has been applied would have the same grievances and concerns as a party in a private law claim for damage. Second, there is nothing in Lord Bingham’s reasoning or in the reasoning in the other cases in which the circumstances in which the appointment of a Special Advocate was considered, which indicated that their remarks would only apply to judicial review claims and not to private law claims. Third, if Lord Bingham had intended his comments to apply to all kinds of claims, (whether in judicial review or in private law proceedings), he would indeed have used the wording, which he actually used. Finally, as I will explain in paragraph 28 below, Lord Bingham has subsequently explained in R v H and Others [2004] 2 AC 134, that the appointment of a special advocate can be justified “ [24] …where the interests of justice are shown to require it”.[24]It is significant that Lord Bingham considered it appropriate for the special advocate to be used to facilitate the examination of documents which might be subject to PII but that role was different from the more comprehensive role envisaged in this case where the special advocate in this case would additionally be acting as the closed advocate on behalf of the claimants at the hearing in challenging the closed evidence. What Lord Bingham’s comments show is that the decision in Rehman (supra) was of more general application than merely being based on the fact that the 1997 Act permitted its use before SIAC as I explained in paragraph 19 above.[25]The next case relied upon by Mr Crow is R v H and Others (supra), which was an appeal from a ruling by a trial Judge first that the PII hearing should not be conducted in open court with the parties present and second that instead special independent counsel should be appointed to introduce an adversarial element into the hearing so as to avoid a violation of article 6 of the ECHR.[26]The Appellate Committee held that the appointment of a special counsel to represent the defendant as an advocate on a PII application might in exceptional cases be necessary in the interests of justice but that such an appointment should not be ordered unless and until the trial Judge was satisfied that no other course would adequately meet the overriding requirements of fairness.[27]Lord Bingham of Cornhill giving the considered opinion of the Appellate Committee explained that:-(a) “20…The courts have recognised the potential value of a special advocate even in situations for which no statutory provision is made. Thus the Court of Appeal invited the appointment of a special advocate when hearing an appeal against a decision of the Special Immigration Appeals Commission in Secretary of State for the Home Department v Rehman…and in R v Shayler.., this House recognised that this procedure might be appropriate if it were necessary to examine very sensitive material on an application for judicial review by a member or former member of a security service” (page 150); and that(b) “22. There is as yet little express sanction in domestic legislation or domestic legal authority for the appointment of a special advocate or special counsel to represent, as an advocate in PII matters, a defendant in an ordinary criminal trial, as distinct from proceedings of the kind just considered. But novelty is not of itself an objection, and cases will arise in which the appointment of an approved advocate as special counsel is necessary, in the interests of justice to secure protection of a criminal defendant’s right to a fair trial”.[28]Lord Bingham then accepted that the appointment of a special advocate might well raise ethical problems and the appointment of a special advocate “is also likely to cause practical problems of delay... of expense” [22]. He then proceeded to say that:- “22… None of these problems should deter the court from appointing special counsel where the interests of justice are shown to require it. But the need must be shown. Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirements of fairness to the defendant”.[29]In response, Mr Fordham contends that this case concerned a preliminary PII process in a criminal prosecution and there was no question of the procedure leading to the admission of material not disclosed to a party before the tribunal of fact. The issue in the case related to whether material could be withheld from disclosure and so from use by any party. There is force in this contention but in the passage set out in paragraph 27 above, Lord Bingham stressed the need for the court to reach a conclusion on documents too sensitive to disclose to a party and that as a last resort where the need to do so had been shown, the interests of that party could be represented by a special advocate.[30]Another case relied on by Mr Crow is Roberts v Parole Board and Another [2005] 2 AC 738 in which the Parole Board while exercising its duty to review the case of a life sentence prisoner, had received information from the Home Secretary on which he proposed to rely in evidence but which the Board considered would put the informant at risk if it was disclosed to the claimant or his legal representatives. In those circumstances, the Board directed that evidence should only be disclosed to a specially appointed advocate acting on the claimant’s behalf.[31]This decision was challenged but a majority of the Appellate Committee rejected the challenge explaining that article 6 of the ECHR did not apply to the role of the Board (paragraph 42). Lord Woolf CJ (who was part of the majority) explained that:- “43. Based on Lord Bingham’s approach it can therefore be accepted when determining the outcome of the issue that fairness is a “constantly evolving concept”. Provision has to be made when it is necessary for derogation from the golden rule of full disclosure but the derogation must be the minimum necessary to protect the public interest. When there has to be derogation there can be cases in which the appointment of a [special independent advocate] is, in the interests of justice, advantageous. The European Court of Human Rights has accepted that some operations “must be conducted secretly if they are to be conducted effectively”. Finally, there is the fact that the trial Judge should not be placed in a straitjacket. Instead the decision sets out principles and indicates these principles should be applied on a case by case basis “in the infinitely diverse situations with which trial judges have to deal… the touchstone is to ascertain what justice requires in the circumstances of a particular case”. These points are highly relevant to the determination of the issue”.[32]Lord Rodger of Earlsferry, who was also part of the majority, contrasted how matters would progress in different situations when he stated that:
“111. …In addressing the question, however, a court would have to contemplate the two possible alternative solutions, each of which gives decisive weight to the interests of the prisoner. One solution would be to disclose the information to the prisoner’s representative and, if possible, to require the informant to give evidence, even though this would risk putting his life or health in jeopardy. That solution would be, to say the least, unattractive and might well give rise to significant issues under articles 2 and 3 of the European Convention. The other solution would be for the board to exclude from their consideration any evidence which could not be safely disclosed to the prisoner or his representative. In other words, the board should close their eyes to evidence, even though it would be relevant to the decision which Parliament has charged them to take for the protection of the public. That solution too would be – again, to say the least – unattractive and, moreover, hard to reconcile with the board’s statutory duty not to direct a prisoner’s release on licence unless they are satisfied that it is no longer in the interests of the public that he should be confined…”
[33]Lord Carswell, who was also part of the majority, explained in relation to the Parole Board that:- “131…The functions of the Board are to assess whether it is safe to release offenders or whether they would constitute a danger to the public if set free from prison. In order to discharge these functions it is essential that it has before it all the material information necessary for the determination of that issue of public safety. If the only effective way to get that information from reluctant informants is to use the [special independent advocate] procedure, then I consider that the use of that procedure is incidental to or conducive to the discharge of its functions”.[34]Lord Carswell then stated (paragraph 132) that this conclusion was reinforced by the power of the Parole Board to withhold material altogether from the prisoner and his representatives as set out in rule 6 (3) of the Parole Board Rules 2004.[35]Mr Fordham contends that the Roberts decision has limited value as unlike the present case, it was concerned with the powers of the Parole Board, which had an underlying statutory closed process like SIAC. So he says that Roberts was decided in a totally different context to the present case and that it did not involve a once and for all determination of civil rights, such as the issue in the present proceedings.[36]The reasoning of the majority in Roberts was that the court had to decide how the interests of the prisoner could be protected in circumstances in which the Parole Board has a statutory right under its rules to withhold information from the prisoner. The position in Roberts was significantly different from the one prevailing in the present case because not merely have the defendants no right to withhold disclosure from the claimants in the present case but on the contrary, they have a positive obligation to disclose under the CPR but subject to different exceptions. Some limited assistance to the defendants’ case can be found first in the general and unparticularised nature of the comments made by Lord Woolf on the need in certain situations to appoint a special advocate in the interests of justice and second the explanation of the need in that case to invoke a special advocate process in that case as explained by Lord Rodger and Lord Carswell.[37]The next case relied on by Mr Crow is Shiv Malik v Manchester Crown Court (supra) in which the claimant challenged an order of the Manchester Crown Court granting a production order requiring the claimant to produce certain material. This order had followed proceedings held in camera because of the confidentiality of some of the material covered by the production order. One of the grounds of challenge to the order was that a special advocate should have been appointed to represent the interests of the claimant at a closed hearing. Material considered by Dyson LJ (who was giving the judgment of the Divisional Court) to be of importance to the outcome of the application for the production order had not been seen by the claimant or by his legal representatives.[38]Thus, it was contended on behalf of the claimants that the requirements of natural justice had not been satisfied by the procedure adopted in that case because he had been deprived of his fundamental rights in a judicial inquiry which would have enabled him to see all the information put before the judge so that he could comment on it, challenge it and, if necessary, counter it by adducing contrary evidence. It was said by counsel for the claimant in that case that at the very least, the appointment of a special advocate was required to view the closed material and to attend the closed hearing in order to cross-examine the police officer, who had given the critical evidence. The argument for the claimant in that case was that this submission was reinforced by the seriousness of the consequences for the claimant if a production order was to be made against him.[39]Dyson LJ explained that the use of special advocates was first sanctioned by Parliament in the context of national security deportations by the creation of SIAC. The functions of a special advocate were explained as having two principal tasks of which the first was to test the Secretary of State’s obligations to disclose material to the applicant and to see whether more could be moved from the closed to the open part of the proceedings and then second to represent the interests of the appellant in any closed proceedings. A fundamental feature of the special advocate procedure was that once the special advocate has received closed material, his ability to communicate with the appellant or his representative was then severely curtailed.[40]Dyson LJ pointed out that there had been cases where, without any applicable statutory scheme, the court had asked the Attorney-General for a special advocate and he referred to the Rehman case (supra), the Shayler case (supra), the H case (supra) and the Roberts case (supra). Having reviewed some of the comments in H and Roberts, Dyson LJ then concluded his analysis of when a special advocate may be appointed by stating that:- “99. We accept therefore there is power in the court to request the appointment of a special advocate of its own motion. But that power should be exercised only in exceptional cases and as a last resort. 100. In deciding whether to request the Attorney-General to appoint a special advocate the court should have regard to the seriousness of the issue that the court has to determine. We accept that the consequence for the claimant of an order that requires him to disclose his sources… are very serious for him. But as against that, the entitlement to disclosure of relevant evidence is not an absolute right. One important competing interest which may justify non-disclosure is national security”.[41]Dyson LJ continued by pointing out (paragraph 101) that in a procedure which is carried out without notice to the opposing party, the court may consider that the absent party is afforded a sufficient measure of procedural protection by the obligation on the party who is present to lay before the court any material that undermines or qualifies his case or which would assist the absent party. He explained that the court itself could be expected to perform a role of testing and probing the case which is presented and all these features might satisfy the court first that the procedure is fair and second that it complies with article 6 even without the special advocate. Dyson LJ placed particular emphasis on the duty of the court to test and probe the material which had been laid before it in the absence of the person who is affected. He explained that judges who conduct criminal trials routinely perform this role when they hold a PII hearing.[42]Later in his judgment (paragraph 102), Dyson LJ explained that a further relevant question would be the extent to which a special advocate might be likely to be able to further the absent party’s case before the court. He accepted that it might not always be possible for the court to form a view as to how far realistically a special advocate is likely to be able to advance the party’s case but sometimes it is possible.[43]He then continued by saying (with my emphasis added) that:- “102... if the court concludes a special advocate is unlikely to be able to make a significant contribution to the party’s case, that is a relevant factor for the court to weigh in the balance. It should always however, be borne in mind that it is exceptional to appoint a special advocate outside an applicable statutory scheme”.[44]On the particular facts of the Malik case, the Divisional Court held that the judge did not err in not requesting the appointment of a special advocate because first the claimant had not asked him to make such an appointment (paragraph 104) and second that even if the claimant had not been represented, it was doubted whether it was one of those exceptional cases where the judge should of his own motion have requested the appointment of a special advocate (paragraph 105).[45]The claimants seek to distinguish that case by pointing out that the special advocate was not being sought by the person from whom disclosure was being withheld but I am unable to see why that is a relevant factor. The issue of whether the appointment of a special advocate is lawful or proper depends on the necessity of having a special advocate appointed bearing in mind that it is only permissible in an exceptional case and as a last resort. There is no rule as to who should make the application for it but the critical issue in that case was when a special advocate could and should be appointed where there is no statutory regime but where there were exceptional circumstances and so it was a remedy of the last resort. This was so even though the Divisional Court held on the specific facts of that case that it was not appropriate.[46]The next case relied upon by Mr Crow is A & Others v HM Treasury [2009] 3 WLR 25, which was concerned with the obligations on the United Kingdom as a member of the United Nations to ensure that a designated individual’s assets were subject to financial restrictions. The Terrorism (United Nations Measures) Order 2006 (“the 2006 Order”) sets out the manner in which the United Kingdom satisfied those obligations and it made express provision that someone whose assets were frozen could apply to the court but no procedural regime was set out. It was contended that there were inadequate safeguards for parties made subject to orders made under the 2006 Order. One of the questions that had to be considered by the Court of Appeal was whether or not special advocates could be used in that process.[47]Sir Anthony Clarke MR (with whom Wilson LJ agreed) explained in paragraph 58 of his judgment that:- “There is no power to appoint a special advocate in proceedings arising out of an order [made under the 2006 Order]. However, as I see it there is no reason in principle why a special advocate should not be appointed in a particular case. The authorities show that in an appropriate case the court would have the power to authorise or request the use of a special advocate, see in particular the decision of the House of Lords in Roberts… where it was held that the court had power to do so even though it was not sanctioned by Parliament. Whether it should do so would depend on the particular circumstances of the case. It has very recently been held by the Divisional Court in Malik… that the court has power to ask the Attorney-General to appoint a special advocate or that it should only do so in an exceptional case and as a last resort…”[48]The Master of the Rolls proceeded to quote a statement made by the Economic Secretary to the Treasury that the government intended to put in place a special advocate procedure but at the time of the decision of the Court of Appeal no such procedure was in force. I was told by counsel that by the time the Supreme Court considered this point in October 2009, such regulations were in force.[49]The Master of the Rolls again with Wilson LJ’s agreement continued by stating that:- “60 ...the court has power to order a special advocate. In most cases such an advocate should be able to ensure that the individual will receive a fair hearing. In other cases the direction would have to be discharged, see the reasoning of the House of Lords in the MB case. In either case, the interests of the individual will be protected.”[50]In that case, the Court of Appeal reversed the ruling of the judge and instead it held that the interests of the individual made subject to an order pursuant to the 2006 Order were adequately protected. Sedley LJ dissented on the conclusions on the use of a special advocate as he did not consider that the courts could “devise a surrogate system for securing fair hearings, at what will be considerable public expense, for individuals for whom the executive has not-or not so far - found it expedient to provide a fair hearing” (paragraph 133). This judgment shows that a central issue was whether in a case where there was no statutory regime for a Special Advocate or for a closed material procedure, such a procedure could be adopted and the answer was in the affirmative in an exceptional case and as a last resort.[51]The final case relied on by the claimants is AHK v Secretary of State for the Home Department (supra) in which the Court of Appeal had to consider in the context of a rejection by the Home Secretary of an application for naturalisation based on closed material whether it should look at documents before deciding whether to ask the Attorney-General to appoint a special advocate. The judgment of the court was given by Sir Anthony Clarke MR, who having reviewed the cases, explained at page 2063 that:- “37… (iv) The principles to be borne in mind are these:(a) A special advocate should be appointed where it is just and therefore necessary to do so, in order for the issues to be determined fairly;(b) Where the material is not to be disclosed and/or for reasons not to be given to the claimant there are only two possibilities: (a) that the Judge will determine the issues, which may include or be limited to issues to disclosure, by looking at the documents himself or herself or (b) that he or she will do so with the assistance of a special advocate;(c) the appointment of a special advocate is, for example, likely to be just where there may be significant issues and/or a significant number of documents. The decision may be different where there are very few documents and the Judge can readily resolve the issues simply by reading them;(d) All depends on the circumstances of the particular case, but it is important to have in mind the importance of the decision from the claimant’s point of view, the difficulties facing the claimants in effectively challenging the case against him in open court and whether the assistance of a special advocate will or might assist the claimant in meeting the Secretary of State’s case and the court in arriving at a fair conclusion(e) these principles should not be diluted on the grounds of administrative convenience”.[52]Later in his judgment the Master of the Rolls developed these points and he explained what the special advocate could do when he said that:- “38…(2) (a)There may be cases in which the court would think it just to appoint a special advocate in other circumstances as for example when no or no significant reasons have been given where it might be appropriate for consideration to be given to making a request for further documents. (4)… we do not think it is necessary to set out the various roles performed by special advocates. They are well understood and include taking instructions from the claimant, but only before the special advocate sees any of the closed material, considering whether further documents are required and whether gisting is required, discussing the problems with counsel for the Secretary of State , making appropriate submissions to the court and testing and probing the evidence as the special advocate thinks fit”.[53]Mr. Fordham contends that these authorities show that the special advocates are only appointed in three classes of cases which are first where there is a special process in which special advocates and a closed system is built in such as in relation to SIAC and control orders. Mr. Fordham’s second category are cases where there is a special process involving determination on closed evidence without a special advocate being expressly built into the process and Malik (supra) is an example. His third category is where the court is making decisions on closed evidence such as in A v HM Treasury (supra).[54]It is correct that the reported cases fall within the three classes of cases to which Mr. Fordham has referred but I am not satisfied that these are the only categories where special advocates can be appointed for three reasons. First, none of the cases state that the use of special advocates is so limited. Second, the justification for the use of special advocates is expressed in very wide terms, which do not suggest that there should be any limitation on their use other than that it will be used in exceptional cases as a last resort in order to ensure fairness. Third, there is no sensible reason of principle why there should be such a limitation and none has been shown to exist.[55]My preliminary and very provisional view based on the defendants’ authorities is that, subject to and prior to consideration of any of the cases on which Mr. Fordham and Mr. Otty rely, there is clear authority that the use of the closed material procedure and a special advocate can be permitted but only in exceptional cases and as a last resort to ensure fairness. I now turn to consider the cases relied by Mr. Fordham and Mr. Otty to see if my very provisional view is wrong. In support of the contention that a closed procedure is not permissible in a claim for damages, Mr. Fordham places reliance on the decision of the Court of Appeal in Lamothe v Commissioner of the Metropolitan Police [1999] EWCA Civ 3034. The central issue on the appeal in that case was the propriety of the procedure adopted by the circuit judge, who when considering a claim for false imprisonment, assault and trespass had initially acceded to an application by the defendant which was made without notice before deciding in the absence of the claimant first that the defendant’s officers had reasonable grounds for believing the particular person was present in the premises and second that the claimants would be prohibited from asking any questions of the defendants’ witnesses which might reveal the grounds for their belief.[56]The ground of appeal was that the procedure adopted by the circuit judge was contrary to the ordinary rules of procedure and was unfair. Mr Fordham attaches importance to the approach of Lord Bingham CJ (with whom May LJ agreed) in that case when he explained that where the complaint was lack of particularity, then the defendant had three choices when faced with the contention that the claim should be struck out as disclosing no defence. They were first to accept that the paragraph should be struck out and second to contend that the paragraphs were unobjectionable while the third course which might be combined with the second course was to accept that the paragraphs were objectionable as they stood but to contend that they could be saved by amendment and by the addition of appropriate particulars.[57]Lord Bingham then proceeded to say that if the defendant felt inhibited from disclosing information, then this would be the proper subject of a claim for PII. The point made by Mr Fordham is that there was no suggestion made by Lord Bingham that a special advocate should be used and this shows the limitations on the use of special advocates. I am unable to agree because first there is nothing in the transcript to show that the use of a special advocate was considered by counsel in Lamothe and second the judgment of the Court of Appeal in Lamothe was delivered on 25 October 1999 and so it therefore preceded by a substantial period the judgment in Rehman which was only delivered on 11 October 2001. Lamothe therefore represents the approach of the courts to closed material prior to the line of cases starting with Rehman and it is worth mentioning that Lord Bingham who gave the leading judgment in Lamothe (supra) did not feel inhibited by it from accepting the use of a closed material procedure in the passages from his speeches in Shayler (supra) and H (supra) which I have set out in paragraphs 21, 27 and 28 above.[58]In response Mr Fordham relies on what was said later about Lamothe in H and others (supra) by Lord Bingham when he was considering an earlier decision of the Court of Appeal in R v Smith (Joe) [2001] 1 WLR 1031. In that case, a defendant had been charged with burglary and the basis of the prosecution case was that the DNA profile obtained from a sample taken from the defendant without his consent matched the blood at the scene of a burglary. At the start of the trial, the prosecution counsel made a without notice application that certain material should not be disclosed and the judge granted this application. The defence then submitted to the judge that DNA evidence derived from an intimate sample should be excluded under section 78 of the Police and Criminal Evidence Act 1984 on the grounds that the police had no reasonable grounds for suspecting the defendant of committing the burglary and had therefore not been entitled to arrest him or take samples.[59]The trial judge relying on information communicated to him by the prosecution during the PII hearing ruled that the police had reasonable grounds for suspicion and he declined to exclude the DNA evidence. The defendant was convicted and his appeal was based on the fact the judge should not have been entitled to rely on the evidence communicated to him at the PII hearing and unknown to the defendant. This argument was rejected when the appeal was dismissed.[60]Lord Bingham in H explained (paragraph 42) that the main plank of the defence had been destroyed by evidence given to the Judge privately which the defence never had the opportunity to meet in any way. He added in relation to the Court of Appeal which dismissed the appeal that:- “42…had it been referred (which it was not) to the Court of Appeal’s judgment in civil proceedings in Lamothe.., it would perhaps have reached a different result. R v Smith (Joe) should no longer be treated as good law”.[61]Mr Fordham contends that that shows that a closed process is inappropriate and that there was no suggestion that a special advocate should have been used. In my view, Lord Bingham was not explaining what should have been done in the Smith case but merely considering the correctness of the decision of the trial judge to deal with matters in the absence of the defendant in order to decide if that case should be overruled. Further, there is nothing in the speech of Lord Bingham which indicates that the special advocate procedure cannot be used. Indeed earlier in his speech in H (supra) as I have explained in paragraphs 27 and 28 above Lord Bingham had explained that the appointment of a special advocate might in certain cases exceptionally be appropriate.[62]The next case referred to and relied on by Mr Fordham was Carnduff v Rock and Another [2001] 1 WLR 1786 in which a claim was brought by a registered police informer against a police inspector and chief constable to recover payment for information and assistance provided to the police. The defendants denied any contractual liability to make any payments and they applied to strike out the claim on the grounds that the claimant disclosed no reasonable cause of action.[63]A majority of the Court of Appeal held first that a fair trial of the issues arising from the pleadings would necessarily require the police to disclose and the court to investigate sensitive information which should in the public interest remain confidential to the police and second that the public interest in withholding the evidence of such issues outweighed the countervailing public interest in having the claim litigated on the available relevant evidence. Mr Fordham drew my attention to the statement made by Laws LJ (who with Jonathan Parker LJ formed the majority) when he said that :- “33. It seems to me that these matters cannot be litigated consistently with the public interest; and if that is so there is a plain jurisdiction to strike out the claim as embarrassing or abusive under CPR r3.4. See what is involved. If the disputes which they generate were to be resolved fairly by reference to the relevant evidence – and there is no other legitimate judicial means of proceedings – the court would be required to examine in detail the operational methods of the police as they related to the particular investigation in question..”[64]Mr Fordham attaches great importance to Laws LJ’s comment that there was “no other legitimate judicial means of proceeding” which he says means that Laws LJ had rejected the idea of using a special advocate but I cannot draw that inference because there is nothing in the judgment to suggest that the possibility of a special advocate or a closed material procedure had ever been considered or suggested by any of the parties. In any event, Carnduff was decided on 11 May 2001 which was five months before Rehman was decided on 11 October 2001. So I do not think that Mr Fordham can derive any assistance from the Carnduff case.[65]Another case to which reference was made by Mr. Fordham is Murungaru v Secretary of State for the Home Department [2008] EWCA Civ 1015 in which the issue was how closed material could be handled in a case where the multiple entry visa of a claimant had been revoked without notice to the claimant. He had made a judicial review application asserting an entitlement to notice of the proposed action and to be informed of the reasons for the decision. A PII certificate had been issued by the Home Secretary in relation to the closed material in which it was explained that he had satisfied himself that it was contrary to the public interest to allow the claimant to re-enter the United Kingdom.[66]The trial Judge had invited the Attorney-General to appoint a special advocate and the Secretary of State appealed contending that there was no viable article 6 claim and that the procedural fairness issue did not require the court to look at the closed material. Giving the main judgment of the court, Sedley LJ explained the nature of the special advocate system stating that it:- “17... is thus not a substitute for the common law principle that every one facing an accusation made by the state is entitled to a fair chance to know the evidence in support of it and to test and answer it in a public place. But it is the best procedure so far devised to mitigate the effect of trial without disclosure if such trial is unavoidable”.[67]Sedley LJ then recorded that the Judge below considered that a special advocate would be of value to the court because he or she “can probe the material independently and relieve the Judge of what might otherwise resemble a partisan intervention” [22].[68]The Court of Appeal had looked at the closed material but it decided in the words of Sedley LJ that “it is uncomplicated and undramatic” [38] and this finding led the Court to conclude that the material covered by the PII certificate did not warrant the appointment of a special advocate.[69]I do not consider that this case is of particular assistance other than to show that a special advocate might be useful in helping a PII claim where the material is particularly complicated but not otherwise. Such a case is far removed from the present case where, as I have explained, Mr. Mackie, the defendants’ solicitor has stated in his fifth witness statement that the results of the defendants’ work to date are that there are “now over 250,000 documents identified as potentially relevant, each document often comprising many pages”. In this witness statement, he also explained that the disclosure exercise in this case “is unprecedented in its combination of scale and complexity” and that there is “a high proportion of very sensitive material that requires particularly careful review”.[70]I have concluded that none of the cases relied on by Mr. Fordham and Mr. Otty whether considered individually or collectively is inconsistent in any way with my provisional conclusion based on the defendants’ authorities that the closed material procedure and special advocates can be used in all exceptional cases and as a last resort to ensure fairness.[71]It is said by the claimants that(a) the use of the closed material procedure as requested by the defendants would be inconsistent with existing and established law relating to PII;(b) its use would involve me as a first instance Judge effectively departing from a long line of House of Lords and Court of Appeal decisions going back at least to Conway v Rimmer [1968] AC 910 and running through to R v Chief Constable of West Midlands Police, ex-parte Wiley [1995] 1 AC 274 and(c) that rationale and logic of PII law is clear which is that the relevant material may be withheld from disclosure to a party on public interest immunity grounds with the consequence, as I explained in paragraph 4 above, that if those grounds are established, neither party may rely on the material (see for example Duncan v Cammell Laird & Co. Ltd (supra) at page 646). In summary, the case for the claimants is that the use of the closed material procedure in a private law case such as the present one would drive a coach and horses through decades of House of Lords’ authority which explain precisely how PII should be dealt with.[72]The public interest immunity test, which may conveniently be found in paragraph 31.3.33 of Volume 1 of Civil Procedure, means in the well-known words of Lord Simon of Glaisdale in R. v Lewes Justices ex parte Secretary of State for the Home Department [1973] AC 388, 407 that:- “the public interest which demands that the evidence be withheld has to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant material …but once the former public interest is held to outweigh the latter, the evidence cannot in any circumstances be admitted. It is not a privilege which may be waived… by the Crown …or by anybody else”.[73]I have great difficulty in accepting the claimants’ case that the closed material procedure would be inconsistent with and contrary to the existing and established law relating to PII for four reasons.[74]First, cases such as Rehman (supra) Shayler (supra) and H (supra) show that an acceptable way of dealing with sensitive material in exceptional circumstances where the interests of justice required it is by using a special advocate procedure and it was never suggested in any of those cases that it was or would be inconsistent in any way with the established PII procedure. Second, A & Others v HM Treasury (supra) shows that the Court of Appeal has devised a procedure which is very similar to the closed material procedure advocated in this case and so the Court of Appeal, who must have been very familiar with the well-known rules of PII, did not consider that this procedure would infringe the rules on PII.[75]Third, no case has been cited which says that the use of a special advocate and the closed material procedure is not permissible because of the rules on PII even though in many of those cases the courts were sanctioning a special advocate procedure. Fourth, there is no reason of principle why the closed material procedure would infringe the underlying basis of PII which is to ensure that material covered by the PII certificate does not get into the public domain.[76]I must add that there are many instances where the PII material contains information which might damage the State or which might assist the opposing party. I can think of a number of instances in which I have dealt with closed evidence where there is closed material which damages the interests of the State but which could not be used in the existing PII regime. In contrast, such material could be used under the closed material procedure by the Special Advocate to damage the State’s case.[77]Mr. Otty contends that the closed material procedure would be inconsistent with a substantial number of the provisions of the CPR. The provisions to which he refers are first CPR Part 16.5, which relates to the contents of defence; second CPR Part 31 which deals with disclosure and inspection of documents; third CPR Part 31.3 which is concerned with the right of inspection of documents; fourth CPR Part 31.19 which relates to claims to withhold inspection or disclosure; fifth CPR Part 32.2 which deals with the requirement to serve witness statements for use at trial; and finally CPR Part 39.2 which sets out the general rule that hearings are to be in public.[78]The correct answer to that submission is that all these obligations have either been complied with or they are not absolute but are qualified so that they can be satisfied if there is a “closed material procedure”.[79]In this case, defences have been served to the claims of all claimants which comply with CPR Part 16.5 and no complaint has been made that they do not comply with the CPR. As to the obligations to permit inspection or disclosure of documents, CPR Part 31.19 entitles a party to a claim to withhold inspection or disclosure of a document on the grounds that disclosure would damage the public interest. There is nothing in CPR Part 31 which precludes the closed material procedure.[80]Turning to the requirement for evidence to be heard in public, the provisions in CPR Part 32.2 for evidence to be given in public are subject to any order of the court (CPR Part 32.2.2(b)); that would permit the closed material procedure if the requirements for the use of special advocates were satisfied and the rights of the claimants under the ECHR were satisfied. Finally, CPR Part 39 does contain a general requirement for hearings to be in public but this is again subject to exceptions including for national security considerations as set out in CPR Part 39.2.3 (b).[81]The claimants also contend that CPR Part 1.1(2)(a) would be infringed if the closed material procedure is used as that provision expresses the overriding aim of “ensuring that the parties are on an equal footing”, but this aim is expressly stated to be “so far as practicable”. In any event, it would be a purpose of one of the features of the closed material procedure to ensure the rights of the claimants under the ECHR and at common law are respected and protected. It is noteworthy that although the issue of special advocates have been discussed and have been the subject of comments and judgments in the House of Lords, the Court of Appeal and in the Divisional Court, it has never been suggested that their appointment would be inconsistent with any of the overriding objectives of the CPR or any of the provisions of the CPR. It must not be forgotten that in Rehman (supra) and Roberts (supra) the widely - expressed statements on the use of the closed material procedure and special advocates, to which I have referred, were given by Lord Woolf who only shortly before had been responsible for the CPR and so it would be very strange if he had been unaware of any of its provisions or if he had suggested a procedure which was in any way inconsistent with it.[82]Another point which is taken by Mr. Otty is that if there is a closed material procedure, there would be no need for CPR Part 76 relating to the closed procedure sanctioned by Parliament as a consequence of the Prevention of Terrorism Act 2005 for use in connection with control order proceedings. I am unable to agree because this specifies a mandatory procedure and also significantly it contains very detailed provisions for the precise procedure with specified time periods. CPR Part 76 is much more detailed than anything set out in the authorities to which I have referred and which deal in general with the circumstances in which a closed material procedure can be used.[83]It is also said by Mr. Otty that CPR Part 76.2 expressly modifies the overriding objectives in CPR Part 1 and this shows that the closed material procedure is in conflict with the overriding objectives. In my view, the fact that this is expressly stated in CPR Part 76.2 is merely intended to be declaratory and to preclude any submissions to the contrary. So this submission also does not assist the claimants.[84]To my mind, there is nothing in the CPR which prevents or precludes the adoption of the closed material procedure in a case where there is a civil claim for damages if the other conditions for its use are satisfied. As I have previously explained, the very limited terms of the preliminary issue unfortunately preclude any consideration of the precise way in which the procedure will operate. If, and when, I have to decide whether a closed material procedure should apply in this case, I will return to consider the ways in which the overriding objectives should be complied with.[85]Some submissions were made that the use of the closed material procedure was inconsistent with the provisions of the CPA. I cannot accept them as the closed material procedure has been sanctioned by the Court of Appeal in cases against the Crown and there are no provisions in the CPA which exclude the closed material procedure. It has never been suggested in any of the cases in the House of Lords, the Court of Appeal and in the Divisional Court in which the use of special advocates has been considered that their use infringes any part of the CPA. In addition, there is binding authority which explains the circumstances in which the closed material procedure can be used and I am bound by them.[86]The claimants submit that to agree to the closed material procedure would constitute such a serious innovation as to constitute a “creeping emasculation” of traditional common law rights. They rely on comments made by the House of Lord in R v Davis [2008] 1 AC 1128, which was an appeal in which the issue was “Is it permissible for a defendant to be convicted where the conviction is based solely or to a decisive extent upon the testimony of one or more anonymous witnesses?” The unanimous answer was in the negative and one factor which led to that answer was that it was for Parliament and not the judiciary to decide to permit convictions to be based on the evidence of anonymous witnesses.[87]The claimants relied on the statements by members of the Appellate Committee such as the conclusion of Lord Brown of Eaton-under-Heywood who said of the proposals that witnesses can give evidence anonymously:- “66... If... the government now think it right to legislate in this field, so be it. Meantime, however, the creeping emasculation of common law principles must be not only halted but reversed. It is the integrity of the judicial process that is at stake here. This must be safeguarded and vindicated whatever the cost”.[88]In my view, these comments do not assist the claimants in showing that a closed material procedure cannot be used for at least four reasons. First, the special advocate and the closed material procedures have been adopted to solve many problems since Rehman. It is now a firmly established principle of our legal system as is shown by the decisions to which Mr. Crow referred and in particular the cases of Malik (supra), A and others (supra) and AHK (supra) with the consequence there is clear authority that they can be invoked. Indeed the submissions of the claimants on this point are very similar to the approach of Sedley LJ when he dissented on this issue in A and others (supra) and to which I referred in paragraph 50 above. Second, there has been no suggestion whatsoever that the possible use of special advocates considered in cases like Rehman (supra), Roberts (supra), A and others (supra) and AHK (supra) to which I have referred constituted an “emasculation” of any common law principle.[89]Third, the Appellate Committee were considering criminal procedure and in civil procedure there has been much innovation and development of procedures by judges such as by introducing the freezing injunction (see The Mareva [1975] 2 Lloyds Law Reports 509) and search orders (see Anton Pillar K.G. v Manufacturing Process Ltd [1976] 1 Ch 55). As I explained in paragraph 31 above, in Roberts (supra) Lord Woolf quoted Lord Bingham’s well-known comment that “fairness is a constantly evolving concept” [43]. Fourth if there are adequate safeguards for the claimant in the closed material procedure as I anticipate that there will be, there is no reason to regard the closed material procedure as an “emasculation of common law principles”. Indeed if there is to be closed material procedure in this case, I will invite proposals from counsel as to the safeguards that should be imposed in the closed material procedure to protect the rights of the claimants.[90]I do not think that the approach advocated in Davis (supra) in itself amounts to an impediment to the closed material procedure or could be appropriate in this case especially as Lord Bingham, who was a party to the decision in Davis (supra), said in H (supra) that “fairness is a constantly evolving concept” [22]. Thus I reject the contention that it is not permissible to use the closed material procedure because it constitutes a form of judicial innovation which is forbidden territory. On the contrary, the closed material procedure has been accepted by the courts in the cases to which Mr. Crow has referred. But I have still to consider whether to permit it in this case.

VIII Conclusions

[91]As I have already explained, the law in relation to closed material procedure is that: -(a) “there is a power in the court to request the appointment of a special advocate... but that power should be exercised only in exceptional circumstances and as a last resort” (per Dyson LJ in Shiv Malik v Manchester Crown Court [2008] 4 All ER 403 [99] following the statements of Lord Woolf MR in Secretary of State for Home Department v Rehman [2003] 1 AC 153 [31], Lord Bingham in R v H and others [2004] 2AC 134 [20] and [22]. See also similar statements of Sir Anthony Clarke MR in A and Others v HM Treasury [2009] 3 WLR 25 [58] and in AHK v Secretary of State for Home Department [2009] 1 WLR 2049 [37] and [38];(b) in deciding whether to request the appointment of a special advocate, “the court should have regard to the seriousness of the issue that the court has to determine” (per Dyson LJ in Malik [100]);(c) “one important competing interest which may justify non-disclosure is national security” (ibid);(d) “the appointment of a special advocate, is for example, likely to be just where there may be significant issues and/or a significant number of documents” (per Sir Anthony Clark MR in AHK v Secretary of State (supra) [37];(e) “it is important to have in mind the importance of the decision from the claimant’s point of view in the difficulties facing the claimants in effectively challenging the case against him in open court and whether the assistance of a special advocate will or might assist the claimant in meeting the Secretary of State’s case and the court in arriving at a fair conclusion” (ibid); and(f) the use of the closed material procedure in civil claims for damages is not precluded by any authority, any rule relating to PII, any provisions in the CPR or in the CPA or any matter which has been raised in the written or oral submissions of the claimants or of the interveners.[92]Therefore, I consider that it can be lawful and proper for a court to order that a closed material procedure as defined in the preliminary issue can be adopted in a civil claim for damages. That is the only issue which I am asked to determine. Consideration will now have to be given to the question of whether that procedure should be adopted and how it should be dealt with. As I have explained, it is unfortunate that these issues were not dealt with as part of the present preliminary issue. In this connection, as I have explained it is noteworthy that Mr Mackie in his fifth witness statement made on 28 October 2009 explained that the disclosure exercise in this case “is unprecedented in its combination of scale and complexity” and that there is “a high proportion of very sensitive material that requires particularly careful review”. I do not know what the submissions will be when I have to decide if a closed material procedure should be adopted in this case bearing in mind that it should only be used “only in exceptional circumstances and as a last resort”.[93]It would therefore be helpful if when judgment is handed down a timetable is worked out (hopefully by agreement) to deal with the issues of(a) (if it is still disputed by the claimants on the facts) whether there should be a “closed material procedure” in this case and(b) its precise terms.[94]The problems that the closed material procedure presents for a claimant are well-known and were fully explained by the House of Lord in its recent decision in Secretary of State for the Home Department v AF (No 3) (supra). It is worth repeating and stressing that, as I have explained in paragraphs 5, 12, 80 and 81 above, that if the closed material procedure is adopted, it would have to ensure that the rights of the claimants under the ECHR are not infringed. In those circumstances, I do not agree with the contention that such a closed material procedure would place the claimants at a disadvantage compared with the usual PII process. The Judge conducting a closed material procedure with the assistance of a special advocate acting for the claimant would be carefully scrutinising whether any documents for which PII has been claimed should be disclosed to the claimants’ open advocate. Furthermore, the interests of the claimants would be served by the special advocate, and also if there is material from the PII documents which helps the claimants that can be used whereas in a conventional PII process it could not be taken into account.[95]In addition, the criticisms of the claimants and the Interveners that the closed material procedure introduces a new and previously unheard of level of secrecy into the present claims for damages are incorrect. The existing PII procedure has a closed element to it as it requires a judge to consider the documents for which privilege is claimed in private with some assistance from counsel for the organ of State claiming PII. An important difference if the closed material procedure is used is that the claimants would have the benefit of a special advocate at the closed sessions, who will be able to contend where appropriate that the documents should be disclosed to the claimants. This can in some cases be to the claimants’ advantage as is the fact that the special advocate will in the closed proceedings be able to use in the claimants’ favour any matters in the closed material which assist the claimants. If a closed material procedure is not permitted in any private law claim for damages, it might mean that some government entities would be unable to defend claims for breach of contract if their only defence would entail showing that the claimant had misused highly secret government information, which would be covered by PII. I repeat that I have not heard submissions on whether a closed material procedure is appropriate in the present case and I therefore have no views on that question.[96]For all those reasons, the preliminary question will be answered in the affirmative and a timetable for further directions will have to be agreed when judgment is handed down.

Cited in 3 later judgments