Reference:  EWCA Civ 482
Court: Court of Appeal (Civil Division)
Judge: Lord Neuberger Master of the Rolls, Maurice Kay LJ, Sullivan LJ
Date of judgment: 4 May 2010
Summary: Civil procedure - Civil evidence - 'Closed material procedure' - Disclosure - Public interest immunity - Special advocates - Civil Procedure Rules - National security
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Instructing Solicitors: Birnberg Pierce & Co, Leigh Day & Co and Christian Khan for the Appellants; Treasury Solicitor for the Respondents.
Intervenors: Guardian News and Media Ltd, Times Newspapers Ltd, the BBC, Liberty and Justice
The appellants (A), six former Guantanamo Bay detainees, made various claims against the respondents (R) under various heads including false imprisonment, trespass to the person, conspiracy to injure, torture and negligence. They appealed against a decision of Mr Justice Silber that it was open to the court in the absence to statutory authority to order a “closed material procedure” in relation to a civil claim for damages. A “closed material procedure” would allow R to comply with their disclosure obligations without disclosing material to A where disclosure would be contrary to the public interest (i.e. national security, international relations, detection of crime and other circumstances likely to harm the public interest). In such a case, Special Advocates would be brought in test the material in A’s interests but would not be able to take any instructions from them. A contended that R should take the normal approach to claiming public interest immunity.
Whether it was open to the court as a matter of principle to order a ‘closed material procedure’ in relation to a civil claim for damages.
Allowing the appeal:
(1) It was not open to a court to order a ‘closed material procedure’ in relation to an ordinary civil claim. It would undermine one of the common law’s most fundamental principles – that each party and his lawyer must see and hear all the evidence and argument heard by the court.
(2) Trials should be conducted, and judgments given, in public. Although CPR 39.2 sets out exceptions to this rule, it makes no exceptions in relation to statements of case, disclosure, inspection or witness statements.
(3) In any event, such a procedure would not be permissible under the CPR, nor practical in terms of effective case management or costs management. The provisions relating to the preparation and service of defences were inconsistent with the notion of a ‘closed defence’. In general, the overriding objective of the CPR requires cases to be dealt with fairly so parties are on an equal footing.
A powerful judgment by the Court of Appeal, reaffirming some of the most basic principles of common law and natural justice. The court took a firm and unambiguous stance on the impermissibility of ‘closed material’ in ordinary civil claims. The Master of the Rolls stated that if the court were to accede to such a procedure in these circumstances:
“The outcome would be likely to be a pyrrhic victory for the defendants, whose reputation would be damaged by such a process, but the damage to the reputation of the court would in all probability be even greater.”
Nonetheless, the Court left open the question of whether a closed material procedure could be adopted in an ordinary civil claim where all the parties agreed or where there was a substantial public interest dimension.