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The New Law Journal/2010 Volume 160/Issue 7424, July/Articles/Case closed! - 160 NLJ 939 New Law Journal 160 NLJ 939 2 July 2010

Case closed!
Procedure & Practice Kate Wellington solicitor, Linklaters LLP. E-mail: kate.wellington@linklaters.com Reed Elsevier (UK) Ltd 2010 Kate Wellington reports on a final ruling on closed material procedure ******

In Brief
Al Rawi v Security Service: it is not open to a court, in the absence of statutory authority, to adopt a closed material procedure in the trial of an "ordinary" civil claim for damages. ****** In Al Rawi v Security Service [2010] EWCA Civ 482, [2010] All ER (D) 03 (May) the court considered a preliminary issue in a suit brought by six former detainees against several arms of the UK government. The claimants brought the action under a number of heads in tort and for breach of statutory duty, alleging that the defendants had contributed to the claimants' detention, rendition and alleged mistreatment while detained.

Open v closed
The defendants sought to file what was termed an "open defence". This document omitted materials upon which the defendants sought to rely but which they claimed would cause real harm to the public interest if disclosed. This was construed by the court as a request to run all aspects of the case (the pleadings, disclosure, hearings and so on) with parallel "open" and "closed" elements. A process of this kind is not unfamiliar to the courts, and is commonly referred to as the closed material procedure. The closed material procedure allows the Crown or emanations of the government to comply with their disclosure obligations, and also to rely upon certain materials in evidence, without disclosing the relevant materials to the other parties in the proceedings where disclosure of the so-called "closed materials" would be contrary to the public interest. The process is facilitated by disclosing the closed materials to a special advocate, who is appointed by the attorney general to represent the interests of the other parties to the action without disclosing to those parties the content of the closed materials.

The claimants in Al Rawi objected to the use of the closed material procedure and contended that it was sufficient for the defendants to claim public interest immunity (PII) to avoid the disclosure of any sensitive materials. In the High Court, Silber J rejected this argument and found that it was proper and lawful to adopt a closed material procedure in a trial of this kind (Al Rawi v Security Service [2009] EWHC 2959 (QB) (18 November 2009)). The Court of Appeal disagreed.

Why not?
Lord Neuberger MR, delivering the judgment of the court, held "firmly and unambiguously" that it was not open to a court to use a closed material procedure in an ordinary civil trial. The court identified a number of fundamental common law principles that it felt would be undermined if the procedure were adopted. These can be grouped as follows. The requirement for a party and their lawyer to see and hear all evidence and argument that is seen and heard by the court. Such a requirement is an inherent aspect of ensuring a fair trial and upholding a party's right to natural justice, in particular the right to be heard. The principle that a litigant should know the reasons why he has won or lost his case, and the related requirement that the judiciary provide sufficient reasons. The principle that trials should be conducted in public and judgments delivered in public. The rule that a party is entitled to know the essential elements of his opponent's case in advance, such that the trial can be conducted fairly and the parties may properly prepare their evidence and arguments. The rule that a party to civil litigation should be informed of the relevant documents that are in his opponent's control. The court was of the view that the first two of these principles are so embedded in the common law, and so fundamental to the notion of a fair trial, that no judge should override them in an ordinary civil claim without parliamentary authority. In relation to the remaining principles, the court noted that while exceptions to such principles may apply in certain cases, those exceptions should be invoked only in circumstances of necessity and not out of mere convenience. The court also found that, even absent the above principles, jurisdiction to adopt a closed material procedure in an ordinary civil claim is precluded by the terms of the Civil Procedure Rules (CPR). The court looked to the overriding objective in CPR 1.1, which requires the court to deal with cases fairly and to ensure that the parties are on an equal footing. The court then noted CPR 76 and 79, which expressly allow for a closed material procedure to be used in defined circumstances. CPR 76 and 79 provide that CPR 1.1 (and the remaining Rules) should be read and modified as necessary to allow the courts to use the closed material procedure as expressly provided for under those Rules. In the court's view, this suggests that CPR 1.1 (and possibly the remaining Rules) are incompatible with the use of the closed material procedure outside the specific circumstances in CPR 76 and 79.

Adoption?
The court was adamant that it should take a "clear stand" in establishing a rule against the use

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of the closed material procedure in ordinary civil claims, leaving no room for "the odd exception" that could turn into the rule. So will there ever be a case in which the procedure can validly be used by the courts? There are arguably five scenarios in which it is still open to adopt a closed material procedure in the wake of Al Rawi.

Statutory authority
The procedure may be used where a court is given express statutory authority to do so. Indeed, on the same day as the court handed down its decision in Al Rawi, it also delivered its judgment in Home Office v Tariq [2010] EWCA Civ 462, in which it upheld the validity of certain legislative provisions allowing the use of a closed material procedure.

Triangulation of interests
The court noted that different considerations may apply where a wider public interest is engaged by the proceedings, or where the proceedings will have an effect on a vulnerable third party who the court has a duty to protect (such as a child or a parole applicant). Thus the court accepted that a closed material procedure may be appropriate where a judge is acting in a capacity other than as a mere arbiter between the parties directly before him. Ultimately this issue was left open.

Agreement between the parties

The court also considered that it might be possible to use a closed material procedure upon the agreement of all parties to the proceedings. This would essentially involve a party waiving its right to the protections afforded by the common law principles outlined above. Again, the court left open the question of when this might be permissible and appropriate.

Closed materials
The closed material procedure can be used when the subject matter of the hearing is the closed material itself, such as a hearing to determine whether a claim to PII is justified. This is a matter of logic, and the court appeared to have little difficulty in coming to this view.

Other types of proceedings

Finally, the wording of the court's reasons suggests that the rule enunciated in Al Rawi is confined to "ordinary civil claims". It remains to be seen whether it is open to a court to adopt the closed material procedure outside such proceedings; indeed it remains open how widely the term "ordinary civil claim" will be construed. Presumably any eligible proceedings would have to sit outside the remit of the CPR, given the court's view as to their compatibility with the closed material procedure.

Options
Where material is of such a nature that its disclosure would truly be detrimental to the public interest, the only option open to the government in an ordinary civil claim is to assert PII in relation to that material. The consequence is that the material will be withheld not only from

the other parties to the proceedings, but also from the court. In a case such as Al Rawi, this essentially prevents the government from being able to adduce evidence to defend a claim against it for damages. The government does not enjoy the liberty of choosing to disclose materials for its own gain in private proceedings if such disclosure is considered to be harmful to the public interest. The court did acknowledge that an unfair outcome might result from limiting the government's options in this way. However it noted that such a result can often be mitigated by summarising the relevant effect of the withheld materials, producing extracts or producing them "on a restricted basis". Whether these measures will be sufficient to allow the government to run its defence when Al Rawi goes to trial remains to be seen.