Kamoka & Ors v The Security Service & Ors [2015] EWHC 60 (QB)

Case No JHQ/1310699[2015] EWHC 60 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/01/2015
Before
MR JUSTICE IRWIN
Between
(1) ISMAIL KAMOKAClaimants(2) ZIAD ALI HASHEMClaimant(3) ABDEL NASSER BOUROUAGClaimant(4) KHALED ABUSALAMA AL ALLAQIClaimant(5) ALIA BIBI HASSANClaimant(Administratrix for the Estate ofClaimantFARAJ HASSAN AL-SAADI)Claimant(6) MAHMUD MOHAMED ABUSHIMAClaimant(8) ABDULLAH BAKR HASSANClaimant(10) SALAH MOHAMMEDClaimant(11) ABDULBAQI KHALEDClaimant(12) ABDULBASIT ABDULRAHIMClaimant(1) THE SECURITY SERVICEDefendants(2) THE SECRET INTELLIGENCE SERVICEDefendant(3) THE ATTORNEY GENERALDefendant(4) THE FOREIGN AND COMMONWEALTH OFFICEDefendant(5) THE HOME OFFICEDefendant
Tom de la Mare QC, Danny Friedman QC, Dan Squires, Charlotte Kilroy, Helen Law (instructed by Birnberg Peirce) for ClaimantsRory Phillips QC, Kate Grange, Richard O’Brien and Brendan McGurk (instructed by The Treasury Solicitor) for DefendantsHearing Hearing dates: 29 July, 29 September to 2 October
JudgmentMr Justice Irwin :Introduction
[1]After the fall of Colonel Qadhafi in October 2011, the offices of his security services were searched and quantities of documents discovered. The Claimants are of Libyan origin, save for Claimant 5 who is the widow of a Libyan. These claims are derived from the documents discovered.[2]This application concerns Claimants 1 to 5, 11 and 12. Claimants 6 – 10 have been stayed pending an appeal in another related case. Claimants 1 to 5 allege unlawful detention pending deportation, and subjection to Control Orders that substantially restricted their liberty. Claimants 11 and 12 sue in respect of their nomination to the United Nations Al Qaeda and Taliban Sanctions Committee and the consequent freezing of their assets. In each case the detention, restriction of liberty or freezing of the assets arose from the link made between the Claimant and the Libyan Islamic Fighting Group [“LIFG”].[3]The Claimants allege that the documents discovered demonstrate, for a number of legal and factual reasons, that they should never have been detained, undergone restriction of liberty or been subject to asset-freezing orders.[4]Claimants 1 to 5 further allege a failure by the Defendants to give full disclosure to either the Home Secretary or to SIAC, thereby vitiating various decisions of the Home Secretary, constituting an abuse of power and founding a claim for false imprisonment and misfeasance. It is alleged that the failures of disclosure render unlawful the Control Orders obtained.[5]Claimants 11 and 12 have made judicial review claims challenging the decision to nominate them to the UN Sanctions Committee, and later refusals to “de-list” the Claimants. Both Claimants were, in time, removed from the sanctions lists, and their assets were unfrozen. Their public law actions seek “a full merits review” by the Administrative Court of the decisions to nominate and the refusals to seek de-listing. Claimants 11 and 12 are also parties to private law claims, seeking damages for misfeasance in public office and conspiracy to injure.[6]The Defendants apply to dismiss and/or strike out the claims; and in the alternative for a stay. Essentially, the Defendants submit that the statutes providing for SIAC appeals and for Control Orders circumscribe any challenge of the kind made here. They say the only proper course for Claimants 1 to 5 is to seek to appeal the relevant decisions of SIAC and the Control Orders. Even if statute does not require that course, pursuit of private law action represents an abuse of process of the Court. In relation to Claimants 11 and 12, their remedy is to pursue judicial review in the actions already commenced, not proceed by coincident private law action.

Procedural Background

[7]There are detailed differences in the procedural history and chronologies of each action. Each side has treated the two groups – Claimants 1 to 5 and Claimants 11 and 12 – as raising questions in common.[8]Claimant 1 was served with a Notice of Intention to Deport on 3 October 2005 and detained. He appealed to SIAC. In December that year he was arrested and charged with terrorist offences. His SIAC appeal was stayed. In June 2007, along with Claimants 3 and 4, he pleaded guilty to terrorist offences in the Kingston-upon-Thames Crown Court and he was sentenced to 3 years 9 months’ imprisonment. He completed his custodial sentence on 21 October 2007, and re-entered immigration detention. He was made the subject of a Control Order on 2 April 2008. He was, with Claimants 2 to 5, the subject of review in November 2008, wherein Mitting J found that the LIFG remained “a risk to the national security of the United Kingdom”, see: SSHD v AR and Others [2008] EWHC 2789 (Admin). He was then subject to an individual review: SSHD v AU [2009] EWHC 49. His Control Order was upheld. His Control Order was renewed in April 2009 but revoked in November of that year. Claimant 1 did not attempt an appeal from the review by Mitting J. He did seek to appeal the renewal, but withdrew that appeal following the revocation.[9]Claimant 2 was served with a Notice of Intention to Deport on 3 October 2005, and appealed to SIAC. His case was anonymised as “DD” and was heard alongside that of Claimant 5 [as “AS”]. In the course of SIAC proceedings, the Claimant submitted that the SSHD’s case on safety on return was bound to fail, since the Memorandum of Understanding [“MoU”] agreed, and the attendant arrangements for monitoring the MoU, were insufficient to protect him if he were deported to Libya. Following a hearing in October and November 2006, in April 2007 SIAC allowed Claimant 2’s appeal (along with that of Claimant 5) on the ground that although he was a threat to national security, there was a real risk of breach of Article 3 of the European Convention on Human Rights if he was returned to Libya. The appeal by the Secretary of State from this decision failed; see: AS and another v SSHD [2008] EWCA Civ 289 (Admin). On 4 April 2008, Claimant 2 was also served with a Control Order. Claimant 2 was a party to the decision of Mitting J of November 2008. His Control Order was upheld by Mitting J in December 2008: SSHD v AR [2008] EWHC 3164 (Admin). He did not seek to appeal that decision. His Control Order was renewed on 31 March 2009. He appealed that decision, and his appeal has not been withdrawn. The Control Order was revoked on 22 January 2010.[10]In May 2004 Claimant 3 admitted offences contrary to the Forgery and Counterfeiting Act 1981, and was sentenced along with Claimant 4. Claimant 3 received 3½ years’ imprisonment. He was released from prison in June 2005. On 3 November 2005 he was served with a Notice of Intention to Deport and detained. He appealed to SIAC. In December 2005, he was charged with terrorist offences and moved from immigration detention into custody. His SIAC appeal was stayed in December 2005. On 11 June 2007 he pleaded guilty to an offence contrary to s.17 of the Terrorism Act 2000 and was sentenced to 1 year 10 months’ imprisonment. He completed the sentence and re-entered immigration detention, being released on bail in July 2007. A Control Order was served on him on 4 April 2008. He too was a subject of the judgment in the Control Order review of 14 November 2008, where the Court found that the LIFG remained a risk to national security. His Control Order was upheld on 20 March 2009; see SSHD v AT [2009] EWHC 512 (Admin). The Order was renewed in April 2009 and revoked in August of that year. Claimant 3 appealed against the Order upholding his Control Order and was successful on 7 February 2012, the matter being remitted to the High Court. It has not yet been heard.[11]Claimant 4 also admitted forgery offences on 12 May 2004 and received 3½ years’ imprisonment. He too was served with Notice of Intention to Deport on 3 November 2005, and appealed to SIAC. He was made subject to immigration detention. On 12 December 2005 he was arrested and charged with terrorist offences and remanded into custody. His SIAC appeal was stayed on 15 December. On 11 June 2007 he too pleaded guilty to an offence contrary to the Terrorism Act 2000 and was sentenced to 1 year 10 months’ imprisonment. On the same day he entered immigration detention, and on 2 July was released on bail by SIAC. A Control Order was served on 4 April 2008. Claimant 4 was another subject of the judgment of 14 November 2008. On 16 March 2009 a fresh Control Order was made, the first Order being quashed in a judgment of 20 March: AW vSSHD [2009] EWHC 512 (Admin). The second Control Order was revoked on 26 June 2009. Claimant 4 sued for false imprisonment in respect of the first Control Order, and his claim was settled in May 2011. The Claimant sought to challenge the second Control Order, but withdrew the challenge after the Order was revoked.[12]For convenience, although Faraj Al-Saadi is deceased and his widow is the Claimant, I will refer to him as Claimant 5 throughout. Claimant 5 was served with Notice of Intention to Deport on 14 December 2005 and was detained. He appealed to SIAC and his case was heard with that of Claimant 2. He was party to an application for further disclosure in October 2006. The appeal was heard in October and November 2006, leading to the judgment in April 2007 allowing the appeal on the basis of a lack of safety on return. Claimant 5 was released on bail on 17 May 2007. He was a respondent to the unsuccessful appeal by the SSHD in February and March 2008. Claimant 5 was the subject of a Control Order served on 4 April 2008, renewed on 1 April 2009. The Order was revoked by Mitting J, on the ground it was no longer necessary. Mitting J declined to quash the Control Order on the ground of non-disclosure. Claimant 5 does not seek damages for the period during which he was subject to a Control Order.[13]Claimant 11 was nominated for designation by the UN Sanctions Committee on 18 January 2006, and added to the asset freezing list on 7 February 2006. In August 2008 the Fourth Defendant declined to support Claimant 11’s request to be removed from the list. On 19 December 2008 Claimant 11 issued judicial review proceedings to challenge the latter decision. The judicial review proceedings were amended on 10 March 2010 to include a challenge to the original decision to nominate him to the UN, rather than impose a “freezing” order under English law. The judicial review proceedings have three times been stayed pending decisions in other cases on appeal, but remain live proceedings subject to the latest stay.[14]Claimant 12 was nominated to the UN Sanctions Committee on 10 September 2008, and was added to the list on 21 October 2008. On 22 December 2008 Claimant 12 was designated pursuant to EU Council Regulation EC 881/2002. On 14 September 2009 Claimant 12 issued judicial review proceedings challenging the decision to nominate him to the UN and the refusal to support his application to be removed from the UN list. On 9 December 2010 Claimant 12 issued further separate judicial review proceedings challenging the EU listing. Claimant 12 was removed from the UN list on 22 December 2010 and the EU list on 18 January 2011. The second judicial review was withdrawn on 15 February 2011. His judicial review claim in relation to the UN listing, as with that of Claimant 11, has been stayed three times pending the decisions in other appeals. The claim remains extant but subject to the third stay, imposed on 16 May 2014.

Alleged failures to discharge the duty of candour

[15]It is necessary here to set out only a summary of the Claimants’ allegations on this issue.[16]The Claimants allege, on instruction and from publicly available material, that the Libyan authorities under Colonel Qadhafi were at all times guilty of flagrant and serious breaches of human rights when dealing with political opponents and those in detention in Libya; they also allege that picture was well known to the Defendants. Against that background the Claimants make detailed allegations as to the knowledge of the Defendants, and as to the growth of cooperation between the First and Second Defendants and the Libyan Security Agencies. It is alleged that the Defendants began discussion with the Libyan intelligence operatives from late 2001. From 2002 it is claimed that information provided to the Defendants by the Libyans fostered a view that the LIFG was connected to Al Qaeda and this represented a threat to National Security in the UK, as opposed to a merely national engagement in opposition to the Libyan regime.[17]It is said this view arose in part from interrogation of Libyan detainees obtained under torture. It is alleged that the growing relationship included a flow of information about Libyan dissidents from the UK to Libya, and reciprocal information about individuals, including some or all of these Claimants, to the UK. The Defendants are said to have been aware, from November 2002 if not before, that the United States was engaged in “extraordinary rendition” of Islamist suspects on a wide scale, including LIFG members. It is claimed that torture was used in interrogation following rendition and that the UK Security Services shared in the information produced by such methods.[18]The Defendants are said to have “conspired with the CIA and the Libyan Security Services in the unlawful rendition” of [Abdul-Hakim] Belhadj and of having been “involved” in the rendition of Sami Al-Saadi, both members of the LIFG. The UK Government compromised proceedings by Sami Al-Saadi for a large sum in December 2012.[19]It is alleged that by November 2003 the Fifth Defendant had concluded that “simple assurances” from Libya with regard to safety on return could not be relied on. It is alleged there were at least eight relevant cases of Libyan detainees. They were the source of false and unreliable information, given the conditions of their interrogation. It is alleged the Defendants knew of those conditions and knew or should have known that the information from detainees in Libyan hands was unreliable and provided no firm basis for a case in national security, as well as affecting the potential for safe return of any LIFG member deported.[20]It is alleged that in resisting bail applications by Claimants 1 to 5, and in addressing the SIAC appeals of Claimant 2 and Claimant 5 in 2006 (those two appeals being heard in effect as “lead cases”) the Defendants’ witnesses continued wrongly to assert that there was a close association between the LIFG and Al Qaeda. It is alleged that in those proceedings there was in fact reliance on information derived from the interrogation of Belhadj and Al-Saadi, although leading counsel was so instructed that he denied such reliance before the Commission. There is alleged to have been a key failure of disclosure, in breach of the duty of candour, on this issue.[21]Much of the burden of presenting the Home Secretary’s case on safety on return to Libya fell to Anthony Layden, formerly HM Ambassador to Libya. He was a central witness before SIAC, giving evidence to the effect that the MoU which had been signed by the UK and Libya, provided a reliable basis for the safety of deportees. A key part of the case advanced related to the arrangements proposed for monitoring the working of the MoU over time. The Independent Monitoring Body [“IMB”] advanced was the Qadhafi Development Foundation [“QDF”], headed by Saif Al-Islam Qadhafi, son of the Libyan leader.[22]In the course of negotiation with Libya, it is said that the Fifth Defendant tried and failed to persuade Libya that the Libyan Bar Association should act jointly with the QDF as a monitoring body. It is further alleged that means the Defendants knew there could and would be no effective independent monitoring of the MoU, since the QDF would not be independent or effective.[23]The breaches of the duty of candour pleaded can be summarised as follows: a failure to disclose involvement with “rendition” to Libya, to disclose UK Security Services involvement in “direct and indirect” questioning of Libyan detainees, and a failure to disclose information which would tend to undermine the reliability of the MoU, particularly the effectiveness of the proposed arrangements for monitoring the arrangement. In addition it is said there was a failure to disclose the role of the QDF “in pressurising Libyans to return to Libya and its role as a proxy for the Libyan Security Services”. It is also alleged there was a failure to disclose material “which would support a suspicion that Libyan Security Services and other security services had supplied information to the UK relating to [Claimant 2 and Claimant 5]” which was obtained as a result of torture.

The Decision of SIAC

[24]The judgment of SIAC in respect of Claimant 2 and Claimant 5, then anonymised as DD and AS, was extremely full. Between paragraphs 415 and 427 the Commission reviewed the extent of disclosure by the SSHD, since the issue had been raised in OPEN and CLOSED. They did so, even though “in the light of the decision to which we have come, the issue is … academic”.[25]They concluded that the exercise had been conscientiously and properly conducted. They rejected a submission that disclosure should encompass “material which had a real as opposed to a fanciful prospect of generating a line of inquiry in relation to an issue already in the case, or which related to any issue which disclosure might possibly raise”. The test laid down in the Civil Procedure Rules was sufficient, requiring the SSHD to produce “what is relevant and of assistance to the Appellants and to the Commission”. The SSHD applied the “cards face up approach” as approved in R v Lancashire County Council ex parte Huddleston [1986] 2 All ER 941 and consistent with the test laid down by Laws LJ in SSFCA v Quark Fishing Ltd [2002] EWCA Civ 1409. In this instance, of course, the “cards face up” were sometimes to be seen only by those privy to the CLOSED evidence. Nevertheless, the approach was explicitly approved by the Commission.[26]The Commission concluded that both Claimant 2/DD and Claimant 5/AS did represent a risk to the national security. Early on, SIAC considered the link between the LIFG and Al Qaeda, concluding that there were strong connections, and that Belhadj [Al Sadeq] and Sami Al-Saadi (Abu Mundhir), of whose leadership roles in the LIFG SIAC was well aware, were “more focused on Libya but not to the exclusion of the wider Islamist agenda” (paragraph 18). SIAC also concluded that “the national security of the UK was now threatened by the acts of Libyan nationals which harmed Libya” (paragraph 29), giving reasons why that was so. However the Commission went on to say that the mere fact of LIFG membership was insufficient to show an individual was necessarily a global jihadist: the focus had to be on the actions, outlook, associations and future risk of the individual (paragraph 33).[27]SIAC concluded that Claimant 2/DD was indeed an Islamist extremist, with an outlook “less focused on Libya”, than those of Belhadj and Sami Al-Saadi. DD had links to the Taliban and Al Qaeda. His opposition to the Qadhafi regime was a “major aspect of his global jihadist outlook”. Opposition to the Libyan regime was not of itself a threat to UK national security: the Appellant’s overall jihadist outlook was the key consideration.[28]As to Claimant 5/AS, the Commission noted it was not alleged by the SSHD he was a member of the LIFG, although the Libyans had accused him of membership. The great preponderance of the OPEN evidence against him came from material supplied by the Italian authorities, not Libya. This was supplied in support of an extradition request in 2003, and concerned the Appellant’s activities in and around Milan in 2001/2002. The Commission concluded that Claimant 5/AS was part of a group who raised money for Al Qaeda and obtained false identity documents to that end. The group was a “serious terrorist group” (paragraph 99 et seq). The Italian Court did not find the terrorist conspiracy proved beyond reasonable doubt, but that was not to the point. The OPEN evidence sustained the conclusion of the Commission that Claimant 5/AS was an Islamist extremist who was a threat to national security. The CLOSED evidence sustained that conclusion.[29]Given the nature of the current applications, it is relevant to identify some of the matters which were in the minds of the Commission members, in consequence of the disclosure which had taken place. There was a wealth of evidence that prisoners of the Libyan Security Service were routinely tortured, and SIAC accepted that (paragraphs 143 to 145, 294, 300-304). There was ample evidence that a fair trial could not be guaranteed, an aspect of the Libyan regime which reflected the power balances within the country (paragraphs 146-162, 253-261, 383-401). The Commission was aware of rapprochement between the Libyan authorities and the West, from soon after the September 11 New York attacks, including direct cooperation on security matters, focussed on Islamist terrorism: see paragraphs 201/202. That theme was continued as the relationship developed: paragraphs 203, 207, 212. Continued intelligence and counter-terrorist cooperation was part of the reason advanced by the SSHD as to why Colonel Qadhafi would honour the MoU (paragraphs 291, 296).[30]The largest question for SIAC was the effectiveness of the MoU. A great part of the judgment addresses this. The Commission concluded in favour of the Appellants. The arbitrary and changeable nature of Colonel Qadhafi and the personal nature of his rule was central. His inconsistency and capacity to act against his own interests was noted (paragraphs 305-331, 353/354, 371). The QDF was insufficiently independent to act as an effective monitoring body (paragraphs 325-332). In particular: “It is clear that the ability of the QDF to perform the monitoring role derives from the position or influence which Saif [Qadhafi] enjoys … It [QDF] is no more independent of the regime than is Saif himself, and he is not independent.” (paragraph 330)[31]In the course of considering the potential of the QDF, the Commission was aware that it had been hoped by the UK Government that the Libyan Bar Association would act as a co-monitor “for presentational reasons” (paragraph 216). However, it had been accepted by Mr Layden that the Bar Association could not in any event be regarded as an independent body. The organisation “Doctors For Human Rights” had consistently refused to assist the QDF with training, because of the QDF’s “perceived lack of independence and the Libyan Government’s record of torture” (paragraph 216).[32]It was on that basis that the Commission rejected the case of the SSHD on safety on return, and allowed the appeals.

The Approach of the Court in Reviewing the Control Orders

[33]All the Control Order proceedings for Claimants 1 to 4 came before Mitting J, beginning with the question common to all, as to the origins and recent history of the LIFG, and the risk the organisation posed to the national security of the United Kingdom. The Court took a consistent approach in this judgment, and in the individual reviews that followed.[34]Addressing the LIFG, Mitting J noted the two amended OPEN statements provided, with annexes. He observed that much of the OPEN material “was being used … to place in the open arena things which the Security Services would not otherwise be able to [address publicly]”, see: SSHD v AR and Others (supra) paragraph 2. In fact, the assessments of the Security Services were “founded … on far more extensive and potentially reliable closed material”, paragraph 1.[35]Mitting J was clearly alive to the danger of reliance on “detainee reporting, a source eschewed by the Secretary of State for good pragmatic reasons (the difficulty and expense of investigating claims that detainees were tortured or ill-treated)”, paragraph 1. It follows that the Court was fully alive to the risks of such treatment for those in Libyan detention, and to the doubtful reliability of information derived from detainees.[36]The central purpose of that hearing was to establish the nature and purpose of the LIFG. A critical part of that assessment was to consider the relationship between the LIFG and Al Qaeda. Part of an otherwise heavily criticised segment of OPEN evidence advanced by the SSHD comprised an interview with the Al Qaeda leader, Ayman Al Zawahiri. The judge noted that from the public announcement of the existence of the LIFG in October 1995 until at least March 2004, the LIFG was not regarded as a threat to British national security, see paragraph 6. Despite that, LIFG members were believed to have fought with Al Qaeda in Afghanistan and Waziristan in previous times, see paragraph 8. In September 2007 there was an announcement made jointly of a “merger” between Al Qaeda and the LIFG, which the Court concluded was “the culmination of a relationship between AQ and elements of the LIFG which went back many years”, see paragraph 8.[37]The judge paid close regard to the wording of the announcement, which made reference to “a group of men” who “announced joining Al Qaeda”. He laid emphasis on the exhortation, which accompanied the announcement, to the imprisoned leaders of the LIFG [Sadeq/Belhadj and Mundhir/Al-Saadi]: such an exhortation “would not have been made if the merger had already received their express blessing”, see paragraph 8. The judge also relied on an answer from Al Zawahiri given in April 2008, stating that he had not said that the LIFG had joined Al Qaeda: it was “a delegation of distinguished members from the LIFG” who had joined, see paragraph 9. Taking those conclusive points with other circumstantial evidence, the judge concluded there had been “no full scale or complete merger between AQ and the LIFG” but rather a process which might lead to a merger, see paragraph 13. With that nuanced assessment as part of the picture, the judge concluded that “the LIFG remains as it was found by the Special Immigration Appeal Commission in March 2007 to be a risk to the national security of the United Kingdom”, paragraph 13.[38]As would be expected, the Court proceeded to review the individual Control Orders with the specifics of each controlee in mind, but against that backdrop.

The Question of Statutory Bar: SIAC

[39]This issue directly affects C1 to C5 although in slightly differing ways. It will be recalled that C2 and C5 were successful in their SIAC appeals, on the issue of safety on return. If the Defendants succeed, their only remedy will be to seek to reopen aged SIAC appeals in which they were successful. C1, 3 and 4 had SIAC appeals stayed in December 2005. In their cases, if this argument were to succeed, they would presumably have to ask for the stays on their SIAC appeals to be lifted so that their appeals could be pursued.[40]Although the question of a statutory bar is, in one sense, discrete, the statutory provisions are a relevant backdrop when considering the common law and the principles laid down in Hunter v Chief Constable of the West Midlands Police and Others [1982] AC 529.[41]The relevant provisions of the Special Immigration Appeals Commission Act 1997 are as follows:
“ Establishment of the Commission Section 1 (1) There shall be a commission, known as the Special Immigration Appeals Commission, for the purpose of exercising the jurisdiction conferred by this Act. … (3) The Commission shall be a superior court of record. (4) A decision of the Commission shall be questioned in legal proceedings only in accordance with— (a) section 7, or (b) … …. Appeals from the Commission Section 7 (1) Where the Special Immigration Appeals Commission has made a final determination of an appeal, any party to the appeal may bring a further appeal to the appropriate appeal court on any question of law material to that determination. (2) An appeal under this section may be brought only with the leave of the Commission or, if such leave is refused, with the leave of the appropriate appeal court. (3) In this section “the appropriate appeal court” means— (a) in relation to a determination made by the Commission in England and Wales, the Court of Appeal.”
Section 1 (a) section 7, or (b) … Appeals from the Commission Section 7 (a) in relation to a determination made by the Commission in England and Wales, the Court of Appeal.”

Section 7

[42]The Defendants submit that “to the extent that the present tortious claims seek to question the conduct of the SIAC proceedings and the decisions reached by SIAC in those proceedings” such challenge is prohibited by Section 1(4). Not only has Parliament provided for a specific statutory appeal process, but Parliament has gone on to provide expressly that a decision of the Commission may be “questioned” only in accordance with those appeal provisions.[43]The Defendants further rely on the limits of any challenge to SIAC determinations by means of judicial review, as laid down by Laws LJ in the Divisional Court in U v Special Immigration Appeals Commission [2009] EWHC 3052 (Admin) where, in passages subsequently approved on appeal, the Court remarked on the limited extent to which SIAC decisions might be susceptible to such challenge (see paragraphs 85 and 86).[44]The Defendants do not submit that the SIAC Act precludes the Claimants from bringing a false imprisonment claim in respect of their immigration detention pending deportation. The Defendants accept that the continuing legality of immigration detention is a separate question, governed by the principles laid down in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704, as subsequently refined. Such claims were made in ID v Home Office [2006] 1 WLR 1003 and BA v Home Office [2011] EWHC 1466. The Defendants note that when the latter case came on appeal (BA v Home Office [2012] EWCA Civ 944) the Court made clear the need to raise issues of the fundamental legality of detention in any judicial review challenge to the legality of removal directions, since a failure to do so may mean that “where there is no change of circumstances, a subsequent claim for damages for detention will fail as an abuse of process”.[45]The Claimants argue that they do not challenge “a final determination of an appeal” by SIAC. They say it is no part of the Claimants’ case to “traduce” the conclusion of SIAC in favour of C2 and C5 or to seek relief inconsistent with that decision. They rely on the fact that the SIAC judgment in favour of C2 and C5 led the Secretaries of State to withdraw the decisions to refuse to revoke deportation in relation to the other Claimants, which withdrawal extinguished any right of appeal they had. Consequently, say the Claimants, there is no operative SIAC decision which Claimants 2 and 5 seek to challenge, and no decision at all in relation to C1, C3 or C4. C1 to C5 seek redress for past illegal detention, in respect of which SIAC has no statutory jurisdiction to award compensation.[46]The Defendants’ reply to this line of argument is that it greatly underplays the challenge to the conclusions of SIAC comprised in these proceedings. The Defendants recite three key areas of challenge evident from the particulars of claim. Firstly, the Claimants allege a failure of disclosure (“the SIAC Candour Breaches”) which led to the Commission being misled. The Defendants say it is relevant that SIAC determined a disclosure application during the appeal, rejecting the Appellants’ contention that a too narrow approach had been taken to disclosure. This ruling, say the Defendants, must be considered in the context of the SIAC Procedure Rules, and in particular Rule 4(3), which places an obligation on the Commission to satisfy itself that it has the material available enabling the Commission properly to determine the proceedings. The Defendants conclude that it is clear that any challenge to the adequacy of disclosure in SIAC proceedings, at least where the undisclosed material would have affected the outcome, represents a challenge to the Commission’s decision.[47]The Defendants underscore this argument by noting that the Claimants suggest SIAC’s national security findings (which were adverse to C2 and C5) could not have been made, had all the relevant material been disclosed to SIAC (see paragraphs 335-340 and paragraph 362.3 of the particulars of claim). Thirdly, the Defendants rely on the Claimants’ contention that SIAC would have reached different conclusions about bail had all the relevant material been disclosed during bail proceedings, as demonstrating that the Claimant’s challenge is to the decisions or determinations of SIAC.[48]The Claimants’ starting point is that the principle of legality requires clear express language or a strong necessary implication to oust common law remedies. Such remedies are part and parcel of the vindication of the rule of law or common law rights (see: Pyx Granite v Ministry of Housing [1960] AC 260, HMRC v Total Network SL [2008] AC 1174 and R(CPAG) v SSWP [2011] 2 AC 15). The Claimants say there is no language in the SIAC legislation supporting a general ouster of common law remedies. Such language as the statute contains requires to be narrowly construed.[49]The Claimants suggest that the Defendants’ true position is that a private claim cannot be brought if any of the constituent elements upon which such a claim depends is inconsistent with the basis of an earlier SIAC decision, since such a claim amounts to a “questioning” of the decision other than by way of an appeal to the Court of Appeal. The Claimants submit this would amount to a form of statutory issue estoppel with remarkable consequences. Logically, the Claimants submit, such a position would preclude even those who were not party to the relevant determination or decision of SIAC from “questioning” that decision: precisely the position of C1, C3 and C4. The Claimants also argue that such a principle must be taken to apply “whatever the type and content of the decision of SIAC and however ancillary to SIAC’s core jurisdiction”.[50]The Claimants argue that Sections 1(4), 2(1), 3(1) and 7(1) of the SIAC Act must be read together. Section 1(4) is an attempt to oust the availability of judicial review in respect of interim or case management “decisions”. Section 7 represents a mitigation of the attempted ouster by conferring a right of appeal in respect of a “final determination”, thus excluding the right of appeal in relation to interlocutory or case management decisions such as questions of bail, directions and so forth. The section says nothing about whether or not private law actions may be brought, bearing in part or in whole on the same evidence as was before SIAC, or as to whether and when the reasoning of the Commission is immune from challenge. In that context the Claimants repeat the submission that any statutory ouster of common law rights must be construed strictly and narrowly, and that there is in this case no challenge to the decision of SIAC allowing the appeals of two Claimants.[51]The Defendants respond to these arguments by suggesting that the distinction between SIAC’s “reasoning” and its “decision” is entirely false. Given that the Claimants are frank in asserting that, had all the material they say was relevant been before the Commission, a different outcome would have ensued, then the questions of evidence, reasoning and decision are inextricably linked. They argue this contention is supported by the analysis of the function and processes of SIAC contained in the judgment of Lord Phillips in RB(Algeria) v SSHD [2010] 2 AC 110. As noted in that case, the reasoning of SIAC will be of key importance in assessing whether SIAC erred in law or acted irrationally (see, for example, Lord Phillips at paragraph 126 and Lord Hope at paragraph 220).[52]I have concluded that the SIAC Act does not represent an absolute bar to private law action in all circumstances which might call into question some or all of the basis of conclusions of SIAC. The question is not easy. As will appear below, my conclusion on this issue does not represent a simple answer as to whether these cases can proceed.[53]The facts of the case must be borne in mind. Any appeal here would of necessity be by a winning SIAC Appellant, or an Appellant whose SIAC appeal was conceded. It seems unlikely Parliament had that in mind when restricting the rights of challenge. Moreover, the essence of the Claimants’ case is that SIAC was prevented from reaching a proper conclusion by a withholding of material, in breach of the Defendants’ duty of candour, discovered after the event. If such a breach were alleged or discovered during the currency of a SIAC appeal (or an appeal from SIAC) then the statute would almost certainly compel the Claimants, in the Court of Appeal, to raise the matter in SIAC, or potentially by way of judicial review in the face of an adverse ruling by SIAC.[54]However, on the unusual facts of this case, it seems to me that the language of Section 1(A) is not of sufficient clarity on its own to found a strike-out of these claims. The Claimants do not in essence “question” a “decision” taken by SIAC, much less suggest there was a “hard-edged error of law” at the time. The claim is that the outcome, favourable to the Appellants, was reached despite a then-undiscovered abuse of process, which led to conclusions by the Commission adverse to the Appellants but not determinative of their appeals. On those facts, and bearing in mind the need for strict construction when considering the abrogation of important rights and remedies at common law, I conclude this issue in the Claimants’ favour.

Statutory Bar: Control Orders

[55]I begin by drawing together the procedural threads for this group of Claimants. Claimants 1-4 make claims in respect of periods when they were subject to Control Orders. Claimant 2 has an extant appeal against the renewal of his Control Order on 31 March 2009. Claimant 3 appealed successfully against the upholding of his Control Order in March 2009, with the matter having been remitted to the High Court. That remitted hearing has not taken place. Claimant 1 did not attempt an appeal from the review of his initial Control Order. He withdrew the appeal against renewal of the order following its revocation. Claimant 4 achieved a settlement of a civil action for false imprisonment in respect of the first Control Order. He makes no claim in respect of that period. He challenged the fresh Control Order of March 2009, but withdrew the challenge after revocation and does seek a claim in respect of the fresh Control Order. Therefore Claimants 1 and 4 have no outstanding proceedings in relation to their Control Orders, whereas Claimants 2 and 3 do so.[56]The statutory regime under which the Control Orders were passed was laid down in the Prevention of Terrorism Act 2005 [“PTA 2005”]. For most purposes this regime was replaced by the provisions of the Terrorism Prevention and Investigation Measures Act 2011 [“TPIM Act 2011”]. However, some provisions of the PTA 2005 remain in force, including those governing reviews and appeals of Control Orders.[57]The relevant provisions of the PTA 2005 are as follows: “Section 3… (2) Where the Secretary of State makes an application for permission to make a non-derogating control order against an individual, the application must set out the order for which he seeks permission and—(a) the function of the court is to consider whether the Secretary of State's decision that there are grounds to make that order is obviously flawed; … (10) On a hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c), the function of the court is to determine whether any of the following decisions of the Secretary of State was flawed— (a) his decision that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order; and(b) his decisions on the imposition of each of the obligations imposed by the order. (11) In determining— (a) what constitutes a flawed decision for the purposes of subsection (2), (6) or (8), or (b) the matters mentioned in subsection (10), (12) If the court determines, on a hearing in pursuance of directions under subsection (2)(c) or (6)(b) or (c), that a decision of the Secretary of State was flawed, its only powers are— (a) power to quash the order; (b) power to quash one or more obligations imposed by the order; and(c) power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes. (13) In every other case the court must decide that the control order is to continue in force. … Section 10… (1) Where— (a) a non-derogating control order has been renewed, or (b) an obligation imposed by such an order has been modified without the consent of the controlled person, the controlled person may appeal to the court against the renewal or modification. … (3) Where an application is made by the controlled person to the Secretary of State for— (a) the revocation of a non-derogating control order, or (b) the modification of an obligation imposed by such an order, that person may appeal to the court against any decision by the Secretary of State on the application. (4) The function of the court on an appeal against the renewal of a non-derogating control order, or on an appeal against a decision not to revoke such an order, is to determine whether either or both of the following decisions of the Secretary of State was flawed. … (6) In determining the matters mentioned in subsections (4) and (5) the court must apply the principles applicable on an application for judicial review. (7) If the court determines on an appeal under this section that a decision of the Secretary of State was flawed, its only powers are— (a) power to quash the renewal of the order; (b) power to quash one or more obligations imposed by the order; and (c) power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes. Section 11… (1) Control order decisions and derogation matters are not to be questioned in any legal proceedings other than— (a) proceedings in the court; or (b) proceedings on appeal from such proceedings. … (3) No appeal shall lie from any determination of the court in control order proceedings, except on a question of law.” (a) the function of the court is to consider whether the Secretary of State's decision that there are grounds to make that order is obviously flawed; (a) his decision that the requirements of section 2(1)(a) and (b) were satisfied for the making of the order; and (b) his decisions on the imposition of each of the obligations imposed by the order. (a) what constitutes a flawed decision for the purposes of subsection (2), (6) or (8), or (b) the matters mentioned in subsection (10), (a) power to quash the order; (b) power to quash one or more obligations imposed by the order; and (c) power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes. Section 10… (a) a non-derogating control order has been renewed, or (b) an obligation imposed by such an order has been modified without the consent of the controlled person, (a) the revocation of a non-derogating control order, or (b) the modification of an obligation imposed by such an order, (a) power to quash the renewal of the order; (b) power to quash one or more obligations imposed by the order; and (c) power to give directions to the Secretary of State for the revocation of the order or for the modification of the obligations it imposes. (a) proceedings in the court; or (b) proceedings on appeal from such proceedings.

Section 10…

[58]“Proceedings in the court” are defined in Section 15 of the Act as being proceedings in the High Court.[59]The Defendants argue that Claimants 1 and 2 may only challenge or “question” decisions of the Court in relation to the imposition or renewal of Control Orders by way of appeal to the Court of Appeal on a point of law. Challenges to the renewal of the Control Orders must be by way of appeal under Section 10(1)(a) of the PTA 2005, Claimant 2 having an extant appeal on that basis. Claimant 3, having extant Control Order proceedings and a separate extant damages claim pursuant to the PTA 2005, the Defendants again argue it is impermissible for Claimant 3 to seek to mount a further challenge to the imposition of his control order through these proceedings. Claimant 4 seeks redress in these proceedings only against the second Control Order. The Defendants argue that since he withdrew his statutory challenge to that Control Order, it is impermissible to seek to challenge the same order through these proceedings.[60]The Defendants emphasise the primacy and importance of the statutory appeals process in relation to Control Orders, relying on the decision of Ouseley J in BG v Secretary of State for the Home Department [2011] EWHC 1478 (Admin). In that case the Appellant, challenging the renewal of his Control Order, sought to challenge the national security conclusions which had been upheld at the time of his earlier review. The Court concluded that this was impermissible, and that in the renewal appeal the Court could only consider the question of necessity. The only potential route for challenge to the earlier national security findings was an appeal out of time to the Court of Appeal. The Defendants also rely upon the decision of the Court of Appeal in CB and BP v Secretary of State for the Home Department [2012] EWCA Civ 418, where the Court concluded that revocation of a Control Order does not affect the duty of the Court to determine whether the Order (or renewal) was flawed. Unless the controlled person requests a discontinuance, the Court must, even in those circumstances, exercise its supervisory jurisdiction and determine whether the Control Order or the renewal was flawed. Thus, revocation does not alter the need to confine matters within the statutory processes.[61]It will be remembered that Claimants 2 and 5 succeeded in their SIAC appeal. Any appeal by them would lead to the paradox of a challenge to the basis of a decision favourable to them. No such problem arises in the context of the Control Order regime.[62]In summary, therefore, the Defendants argue that where there are extant proceedings in relation to Control Orders (Claimant 2 in respect of renewal, Claimant 3 following remittal to the High Court) those avenues must be pursued. Otherwise the only other proper route is to seek to appeal and/or to seek to re-open appeals. In respect of Claimant 4, the Defendants say that since he withdrew his challenge to the second Control Order, it is in any event impermissible for him to seek to challenge that order in any proceedings.[63]The Defendants also rely on the decision of the Court of Appeal in Mohamed and CF v Secretary of State for the Home Department [2014] EWCA Civ 559 where the Court observed that if a Controlee wishes to contend that his Control Order was flawed by reference to a disclosure failure, that challenge should be made within the Section 3(10) review hearing. The Defendants rely on paragraphs 30-39 of the judgment of Maurice Kay LJ.[64]The Defendants accept that there can be claims for damages under the PTA 2005. Despite the expressly limited powers of the Court set out in Section 3(12) and Section 10(7) quoted above, the Defendants agree that Section 11(6)(i) [“Any other proceedings in the Court for questioning a Control Order decision, a derogation matter or the arrest or detention of a person under Section 5;”], must be read together with paragraph 3 of Schedule 8 of the TPIM Act 2011, which reads in part:
“3(1) The repeal of the PTA 2005 by this Act does not, … prevent or otherwise affect— … (e) the bringing or continuation of any proceedings for an award of damages or other relief arising out of any such proceedings.”
[65]Thus it is conceded that damages claims in the High Court may be made, provided they “aris[e] out of any such proceedings”. The Defendants’ position is that the Claimants must exhaust all or any remedies they have within the statutory regime created by the PTA 2005 before they may initiate or continue such civil claims as these.[66]The Claimants’ reply proceeds from the starting point that claims for damages are legitimate and contemplated by the legislation. There is nothing in the statute which requires that such separate proceedings for damages should be entirely parasitic on the Control Order proceedings proper. Such an interpretation would, say the Claimants, produce “tortuous effects”. The limitations on the Courts’ powers under PTA 2005 Section 3(12), in respect of a fresh Control Order, replicated in Section 10(7) in respect of an appeal of a renewal of a Control Order, must be construed narrowly as only imposing those limitations on the Court’s powers at the culmination of such specific hearings. The restriction of powers cannot be wider, or damages claims could not be made at all within “Control Order proceedings”, a proposition inconsistent with the definition in Section 11(6)(i) and the Schedule to the TPIM Act 2011.[67]Here too the Claimants submit that the statutory language of the PTA 2005 is not capable of meeting “the strong test” set out in such cases as Pyx Granite, HMRC v Total Network and R(CPAG). Only language of the strongest and most explicit character can lead to such a consequence.[68]The Claimants also reject the Defendants’ arguments based on BG v The Secretary of State. The reasoning in that case, say the Claimants, turns on the precise statutory language of Section 10(4) of the PTA 2005, and is confined to the specific statutory review arising at the point of annual renewal of the Control Order. In paragraph 21 of his decision in BG, Ouseley J quoted extensive passages from the judgment of Sir Anthony Clarke MR in Secretary of State for the Home Department v AF(No 2) [2008] 1 WLR 2528. In that case, the Court of Appeal was concerned with the distinction between Section 3(10) hearings and Section 10(4) renewal appeals. Ouseley J went on, in paragraph 22 of his judgment to state:
“In my judgment, the contrast in language between s2(1) and s2(6) shows beyond argument that it is not part of the Court's task on a s10(4) hearing to determine whether the earlier decision under s2(1)(a) was then or is now flawed. The distinction between the two powers was regarded as important in the Court of Appeal's reasoning in AF (No.2). Evidence sought to be adduced for that purpose is not admissible. Mr Bennathan is right that that could mean in theory that where the original Control Order was shown comprehensively to be unjustified, even admitted to be unjustified, the Court dealing with its renewal could not rule against it on the ground that the original Order should never have been made. Mr Hall is right that the only remedy in respect of the original Order would be an appeal out of time to the Court of Appeal.”
[69]Mr de la Mare, for the Claimants, argues that BG was wrongly decided and should be regarded as a decision per incuriam. He notes that what he submits to be relevant authority was not cited to the judge. In particular, he relies on the case of BX v Secretary of State for the Home Department [2010] 1 WLR 2463. BX was concerned with whether the High Court’s jurisdiction to entertain a claim for judicial review of a Control Order decision was, or was not, excluded by Section 11 of the PTA 2005. The Court concluded that the judicial review jurisdiction was not excluded by the statute. The Court had jurisdiction to grant interim relief in the course of an appeal from the modification of a Control Order, but that, as the headnote recites:
“where a controlled person wished to seek such interim relief on proper grounds, the appropriate route was by way of an application in appeal proceedings under section 10: and that, since that was an adequate and sufficient alternative remedy, parallel proceedings for judicial review were unnecessary and wasteful and should only be used as a last resort.”
[70]In reliance on the reasoning and conclusions of the Court of Appeal in BX, the Claimants submit that, had the case been cited before Ouseley J, his conclusions would and should have been different. However, for present purposes, even if BG were correctly decided, its application is confined to Section 10 proceedings in the strict sense. The Defendants are in error, say the Claimants, in seeking to elevate the decision in BG as authority for a complete bar on civil proceedings such as these.[71]In my judgment, the Claimants are correct in arguing that the provisions of the PTA 2005 and Schedule 8 to the TPIM Act 2011, taken together, do not represent an absolute bar to civil proceedings. There is, in my view, a close parallel with the subsistence of judicial review proceedings, as the Court of Appeal concluded in BX v SSHD. I reach no conclusion that BG was wrongly decided but, as the judge made clear (see paragraph 22), he was concerned with the “Court’s task on a Section 10(4) hearing”. The Court was not being asked to decide the question before me.[72]The Defendants are right to say that the judgment of the Court of Appeal in Mohammed and CF v SSHD makes it clear that material non-disclosure, whether or not amounting to an abuse of process, should properly be raised in the course of Control Order proceedings. However, in my view the passages relied on by the Defendants do not preclude private law action in circumstances such as these. Indeed, the thrust of paragraph 28 of the same judgment is to confine the effect of the statutory restriction of the Court’s powers.[73]Mr de la Mare is also right, in my view, that the clearest possible language would be required to preclude a right of action. The better view of the restriction on the Court’s powers set out in Section 3(12) and Section 10(7) is that they apply at the conclusion of the relevant statutory hearing. Since the statutory provisions contemplate the initiation and/or continuation of claims for damages, falling within the definition of “Control Order proceedings” and maintained by operation of statute after the abolition of Control Orders, I conclude that the legislation cannot have the effect for which the Defendants contend. Here too, this conclusion does not lead to a straightforward answer as to whether these claims can proceed. Here too, despite these conclusions, the legislation forms an important context when considering abuse of process.

Abuse of Process

[74]The locus classicus of principle on this topic is to be found in the decision of the House of Lords in Hunter v Chief Constable of the West Midlands Police and others [1982] AC 529. In the central passage of his opinion, Lord Diplock stated the need for the Court to prevent abuse by way of collateral challenge to final decision as follows:
“The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.”
[75]That principle has been adopted and applied in successive cases since. It does not seem to me necessary in this ruling to rehearse the range of subsequent authority. The principle is that the Court must prevent re-litigation intended to, and with the tendency to re-hear issues which have been addressed, raising the possibility of inconsistent judgments.[76]In what I take to be an important element in his formulation, Lord Diplock emphasised that the previous proceedings should have afforded the intending Claimant “a full opportunity of contesting the decision in the Court by which it was made”. One question which arises here – and which remains unanswered – is whether that was so in these cases.[77]In Johnson v Gore Wood and Co. [2002] 2 AC 1, Lord Bingham considered the application of the Hunter principle and emphasised that any review of the issue must comprise: “… a broad merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focussing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the Court by seeking to raise before it the issue which could have been raised before.” (See page 31D)[78]As Lord Bingham’s formulation makes clear, many factors are in play and there are competing considerations. In Hunter itself, and in Amin v Director General of the Security Service [2013] EWHC 1579 (QB), the claims were directed to issues which had been fully ventilated, and in respect of which considered judgments had been given. In each case there were very serious criminal convictions. The need for consistency in such a context is obviously very high. There is, too, a well-established procedure by which fresh evidence may be received in a renewed appeal. That is an important distinction from these proceedings, particularly in respect of the SIAC litigation. Here the context is of successful SIAC appeals (or withdrawal by the Secretary of State) on the one hand, and of revoked Control Orders on the other.[79]Although the provisions of the SIAC Act 1997 do not constitute an absolute bar to such action, there is no doubt that the intention of Parliament was severely to constrain challenges to decisions of SIAC. But it is relevant to consider the extent of any challenge. Were these claims to succeed, they would not undermine the outcome of the SIAC appeals, but there would undoubtedly be a considerable tension between the result in the civil claims and the SIAC judgment.[80]In the case of claims relating to periods when the Claimants were subject to Control Orders, although I have concluded that the statutory provisions do not prevent private law action, and that such action may be within the definition of “Control Order proceedings”, that does not mean that private law action could not amount to an unlawful or abusive collateral challenge to the conclusions of the Court. The fact that the relevant statutory provisions contemplate private law action is not decisive on this point: such claims would normally arise after a successful challenge on appeal or review, and indeed it appears to me that would be the usual sequence which Parliament will have had in mind. Indeed, the thrust of the statutory provisions, particularly the formulation found in Section 11(1) of the PTA 2005, mean nothing unless they are designed to avoid inconsistent rulings in respect of Control Order decisions. The statutory regime is intended to ensure consistency.[81]I have considered carefully whether these claims seek to raise issues which were raised before. I have summarised above the matters addressed in SIAC. It seems to me that they do but the extent of overlap is not in the end clear.[82]One critical aspect of the way the matter is put by the Claimants is that the relevant corpus of evidence, derived from the searches in Libya following the fall of the Qadhafi regime, represents “fresh evidence”, allegedly suppressed evidence. I have not been asked to consider any of the evidence that was placed before SIAC or the Courts making decisions in the Control Order proceedings. I have not seen the OPEN evidence or reviewed it, much less the CLOSED material which was presented in those proceedings. It is not clear to me whether, and if so to what extent, this material is indeed fresh, or is different in its implications from the CLOSED material which quite evidently was before the Court.[83]The Defendants make several salient points on this issue. It is the Defendants’ case that the national security cases here were throughout presented without any reliance on detainee evidence. The Defendants submit that in respect of Claimant 2, a large element in the national security case against him before SIAC was based on a website found on a DVD at his home address in the United Kingdom, demonstrating his support for suicide operations. Material from his computer revealed links to the LIFG and demonstrated that he was involved in the production of false documentation. I am not in a position to judge whether the material now produced casts a significantly different aspect on his case or on the significance of his association with the LIFG. The CLOSED material presented to the Court may have borne a very similar interpretation as to the role of the LIFG to that said to emerge from the material discovered more recently.[84]In relation to Claimant 5, the Defendants submit that the OPEN evidence on national security was almost entirely based on material supplied by the Italian authorities following criminal proceedings in Italy. Again, without being able to compare the material said to constitute fresh evidence with the CLOSED material presented to the Court it is not possible for me to assess the extent to which the evidence recently obtained is truly fresh. I have concluded that that is an important consideration.

Conclusions in Relation to C1 to C5

[85]I summarise my conclusions as follows. Firstly, the statutory provisions in the SIAC Act 1997 do not constitute an absolute statutory bar to private law action in these unusual circumstances. Secondly, the statutory provisions in the PTA 2005 and the TPIM Act 2011 also do not constitute an absolute statutory bar. However, both sets of statutory provisions are intended to confine or constrain challenges to SIAC or Control Order judgments. The legislative schemes in each case underline the need, at the very least, for the Court to be highly vigilant to prevent abuse.[86]I bear in mind the procedural challenges which would face the Claimants in seeking to re-open SIAC appeals which they won on other grounds. Encouraging such appeals would be undesirable. There are also procedural hurdles facing any attempts by the Claimants in seeking to revive at least some of the Control Order proceedings.[87]Although there are differences between the “SIAC” and “Control Order” aspects of these claims, it would seem to me highly undesirable for litigation to proceed in an incoherent fashion. Such an outcome would bring complications for all, with enhanced risks of inconsistent and unsatisfactory conclusions.[88]At the heart of these claims is the suggestion of a suppression of evidence which would or should have altered the conclusions of SIAC (if not the outcome of the appeals) and the outcome of the Control Order proceedings. That is a serious allegation which at least if credible, would require a potential remedy. At the moment, it is not possible for me to compare the ambit of the evidence said to be fresh, or to be clear as to the extent of duplication with the earlier proceedings. I am not able to say whether the evidence advanced is fresh, since I have not been made privy to the CLOSED evidence in either case.[89]The Defendants argue that it is for the Claimants to show that the evidence is fresh, in the sense that it “entirely changes the case”, a requirement identified by Gibson LJ in Walpole v Partridge and Wilson [1994] QB 106, at paragraph 115E. However, I do not see how such a requirement can apply where CLOSED proceedings in the earlier litigation means a Claimant is not privy to all the evidence that was laid against him. He cannot say if it is fresh. Where there is any credible basis for considering that there may be important fresh evidence, then it must be for the Defendants, who seek to strike out the claims, to show that the evidence is not fresh, or not sufficiently material. The same problem would arise if the Claimants were to seek to re-open the SIAC appeals or the Control Order proceedings.[90]Such matters as these are of real potential public concern and that must weigh in the balance, at least to the extent that an effective process and remedy must be available. Here there can be no criminal appeal. If private law action is struck out, the potential remedies (attempts to re-open SIAC appeals in which the relevant Claimants succeeded, a complex pattern of procedural steps in relation to Control Order proceedings) are varied, carry different procedural and technical thresholds, would result in Hydra-headed litigation and run the risk of incoherence.[91]In the course of written submissions, the Defendants support their application to strike out the claims by Claimants 1 to 5 on the basis that they have no reasonable grounds, and/or no real prospects of succeeding in their claim. Little or no oral argument was advanced on this basis. I decline to so rule at this stage. If the Defendants seek to renew their application to strike out (see below) then they may renew this aspect of the application, if they see fit to do so.[92]The Defendants have made it clear throughout that their secondary application, in the absence of strikeout, is a stay upon the claims. In the unusual circumstances of this case I propose to grant a stay for a limited period, initially 56 days. I direct that within that period the Defendants should indicate whether they intend to renew the application to strike out by inviting the Court to look at the CLOSED material which was before SIAC and in the Control Order proceedings. In the absence of such an application, the stay will lapse without further order.

Claimants 11 and 12

[93]Claimant 11, in his judicial review proceedings, recites a number of grounds of challenge, to his nomination by the UK in 2006 to the Sanctions Committee of the UN for designation as an individual associated with Al Qaeda; to his consequential subjection to the Al Qaeda Orders of 2002 and 2006; to his subjection to EC 881/2002. The basis of his nomination was that he was a member of an organisation associated with the LIFG. He also challenges the actions of HMG in failing, then delaying, to seek his de-listing. Following correspondence, he issued judicial review proceedings in November 2008, and was given permission in relation to de-listing in 2009. Following many twists and turns, those proceedings are still extant.[94]The effect of these Orders was to subject the Claimant to highly restrictive asset-freezing and other similar measures and sanctions, including a travel ban. He was eventually de-listed in June 2011.[95]This Claimant firstly says he is entitled to a merits-based review of his designation and of the initial decision to refuse to seek his de-listing, and of the legal basis on which those decisions were taken. Secondly, he challenges the decision to designate him to the UN, rather than to invoke an order under The Terrorism (United Nations Measures) Order 2001 and/or 2006 [“a T Order”] with somewhat less draconian impact. Thirdly, Claimant 11 suggests that the 4th Defendant failed to provide all the relevant information in the possession of the UK, exculpatory as well as inculpatory, to the UN Sanctions Committee, and that the UK caused or permitted “false” information to be relied on, a breach said to continue until de-listing.[96]In his private law action, Claimant 11 pursues claims for misfeasance in public office and conspiracy, again said to stem from information obtained from Libya after the fall of the Qadhafi Regime.[97]Claimant 12 was subject to UN Security Council designation between October 2008 and January 2011. He therefore fell within the Al Qaeda and Taliban (United Nations Measures) Order 2006, and from December 2008 was subject to the parallel European Commission regime under EC 881/2002. He was de-listed by the UN in December 2010 and the EC in January 2011.[98]Claimant 12 challenges five “acts” by the UK authorities: the decision to propose him for the list for designation and his inclusion on that list; the delay in seeking his removal from the list and the basis on which it was eventually sought to remove him; lastly the information provided to the UN. He too seeks a merits-based review of the grounds. His initial grounds were dated December 2011. His judicial review proceedings are extant. In his case also, his private law claim seeks damages for misfeasance in public office and conspiracy.[99]There is obviously no statutory regime said to prevent private law claims in this context. As the Claimants point out, the Defendants do not suggest there are grounds for striking out the private law claims on these facts or on their merits. Nor is there any conclusion of the Court in relation to either Claimant’s judicial review proceedings which might lead to inconsistent outcomes.[100]The Defendants suggest that the private law claims arise from what are “at heart, public law matters” arising from the same facts. The new allegation arising from documents discovered in Libya in 2011, could and should have led the Claimants to reformulate their judicial review claims so that all issues could be addressed within those claims. The Administrative Court, particularly in the course of a “full merits review”, is capable of determining the facts and addressing the public law issues arising. The dispute is “essentially a public law dispute”. Damages can, of course, be awarded in the course of proceedings in the Administrative Court. To launch private law proceedings is a duplication, and abusive. Alternatively, the private law action should be stayed until the judicial review claims are resolved.[101]The Claimants respond by pointing out that, if the judicial review claims had not been issued, there could be no suggestion of abuse of process in launching these claims. There is no conclusion of the Court and no question of any collateral challenge to such. Moreover, the allegations now raised, allegedly on the basis of the material discovered in 2011, go far beyond the issues in judicial review: omission of relevant information is far short of misfeasance and conspiracy. The cases are not abusive. They should be consolidated.[102]I deal with these applications shortly. I find no basis for abuse of process. The principle that duplication of proceedings may be abusive is beyond doubt, and the Court must always have regard to proportionality. It is also clear that an attempt to circumvent the compressed time limits in judicial review by issuing claims in private law form, which are in truth public law challenges, can be an abuse of process, see: Carter Commercial Developments v Bedford BC [2001] EWHC (Admin) 669. However no such device is established here, in my view.[103]It may well be that the Defendants have valid arguments as to delay in the judicial review proceedings. If so, the arguments remain open in those proceedings. If and to the extent that the Claimants would otherwise succeed on public law grounds, they may fail on time. But the Claimants cannot be deprived of the time limits available for private law action because they issued late judicial review claims on a necessarily more restricted basis in law, and (as they allege) on facts which were then unknown to them. I reach no conclusion here, of course, as to the content or significance of the factual material discovered in 2011.[104]I therefore refuse the Defendants’ application to strike out these claims.[105]There must be careful directions to consolidate, or try together, the public law and private law claims. The cases will also require careful consideration as to the possibility of CLOSED material procedures pursuant to the Justice and Security Act 2013. I invite the parties to discuss appropriate directions, if possible to be agreed.

Cited in 5 later judgments