Using Special Advocates in Civil Litigation

November 19th, 2009 by Anya Proops KC

Yesterday, the High Court handed down a controversial judgment on the use of ‘the closed material procedure’ (CMP) in civil litigation: Al-Rawi & Ors v The Security Service & Ors (judge – Silber J). The background to the judgment is that a number of individuals who had been detained at Guantanamo Bay had brought claims for damages against the defendants on the basis that they had caused or contributed to the claimants’ unlawful detention and ill-treatment by foreign governments. A preliminary issue then arose in these cases as to whether the defendants could put evidence before the court using the CMP. The CMP, in effect, allows defendants to put documents in evidence before the court whilst at the same time withholding them from the claimants. The only way in which the claimants have any say on the closed material is through the use of special advocates appointed to act on their behalf. However, the role of special advocates is heavily circumscribed, not least because they cannot convey to their clients the content of the closed material.


The CMP has formerly been used in the context of deportation appeals heard by the Special Immigration Appeals Commission (SIAC). However, the CMP has not previously been a feature of civil litigation. Instead, in the context of civil litigation, if the government was concerned that the disclosure of particular information would be contrary to the public interest, the best it could hope for was to rely on the public interest immunity (PII) procedure. The crucial difference between the PII procedure and the CMP is that the former procedure operates so as to ensure that the PII material is not put before the court at all, whereas the latter procedure allows the government to put the closed material before the judge whilst at the same time not disclosing that material to the other side. Thus, there is an inherent asymmetry present in the CMP which is not present in the PII procedure.


In a controversial judgment, Silber J decided as a preliminary issue that use of the CMP was permissible in a civil claim for damages, albeit only in exceptional cases. In reaching this conclusion, Silber J rejected arguments that the High Court had no jurisdiction to permit the use of the CMP; that use of the CMP was inconsistent with the requirements of the CPR and that it was otherwise at odds with the established PII procedure. It is highly likely that this judgment will go on appeal. 11KBW’s Karen Steyn acted on behalf of the defendants.


‘Meta-requests’ and Late Exemptions – High Court Judgment

August 3rd, 2009 by Anya Proops KC

In Home Office & Ministry of Justice v IC (EA/2008/062), the Information Tribunal held that the Home Office had erred in refusing to disclose information which revealed how internally it had dealt with some 48 FOIA requests which had previously been made by a particular media organisation. In particular, it held that the Home Office had not been entitled to treat that information as exempt under section 36 FOIA (prejudice to public affairs). The High Court has now upheld the Tribunal’s decision on appeal by the Home Office – see Home Office & Ministry of Justice v IC [2009] EWHC 1611 (Admin). Notably, the High Court declined to decide the question of how the Tribunal should respond to a public authority which sought to invoke exemptions for the first time before the Tribunal. The Home Office had sought to argue, contrary to existing Tribunal orthodoxy (see particularly Department for Business and Regulatory Reform v IC & Friends of the Earth (EA/2007/0072)), that the Tribunal had no discretion to refuse late reliance on exemptions and that a public authority was, in effect, automatically entitled to invoke new exemptions at any stage in the process. The Commissioner invited the Court to approve the orthodox position. Keith J held that he ought not to decide this particular issue given that it had effectively become academic on the facts of the appeal. 


Blogger’s Identity Not Private Information

June 17th, 2009 by Anya Proops KC

Yesterday, the High Court handed down an important judgment on the application of the law of privacy to anonymous bloggers. The case involved a detective constable, Mr Horton, whose anonymous blog, ‘Night Jack’, gave a behind-the-scenes insight into modern policing. The prize-winning blog attracted a huge following. When a journalist at the time discovered Mr Horton’s identity by carrying out his own detective work, Mr Horton sought and was granted an injunction restraining the Times from revealing his identity. However, that injunction was lifted in a judgment handed down on 16 June 2009 by Eady J: The Author of a Blog v Times Newspapers Ltd [2009] EWHC 1358 (QB).


The central issue in the case was whether the developing law of privacy entitled Mr Horton to retain anonymity in respect of the blog. Eady J held that the injunction should be lifted because Mr Horton had failed to demonstrate that there was a legally enforceable right to maintain anonymity in respect of his identity. In reaching this conclusion, Eady J applied a two stage test: first, he considered whether Mr Horton had established that he had a reasonable expectation of privacy in respect of his blogging activities; second, he considered whether, if there was a reasonable expectation of privacy, that expectation was nonetheless overridden by the public interest in disclosure.  Eady J found that Mr Horton lost on the first limb of the test because the essentially public nature of his blogging activity meant that, judged objectively, Mr Horton could not reasonably expect that his identity would be treated as private information. Having decided the case against Mr Horton on this basis, Eady J nonetheless went on to consider the public interest arguments. With respect to those arguments, he held that there was in any event an overwhelming public interest in disclosure of the information. This was the case particularly given the public interest in revealing that the person making critical and politically controversial comments about the force through the blog was himself a particular serving police officer. In reaching these conclusions, Eady J rejected arguments to the effect that the injunction should be maintained given the risk that disclosure of his identity would increase the risk that Mr Horton would face disciplinary action.


OGC publishes Gateway Reviews

March 19th, 2009 by Timothy Pitt-Payne QC

Following a decision of the Information Tribunal issued on 19th February, the OGC has published two Gateway Reviews into the ID cards scheme.

The OGC announcement is here (with a link to the documents themselves). The Information Tribunal decision is here, on the Tribunal’s website. This case was previously the subject of a High Court appeal (from an earlier Tribunal decision).


High Court Decision on Section 42 FOIA

February 10th, 2009 by Anya Proops KC

The High Court today handed down an important judgment on the application of the legal professional privilege exemption in section 42 FOIA ([2009] EWHC 164 (QB)). The case concerned an application for disclosure of information held by the DTI (subsequently the Department of Business and Regulatory Reform). The requested information related to the Government’s decision to include a provision in the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 which expressly excluded daily fee paid judicial office holders from the ambit of the Regulations. The request was made by Mr O’Brien QC, who himself sat as a daily fee paid judicial office holder. DBERR refused disclosure of the requested information on the basis that certain of the information was exempt under section 35 FOIA (policy information) whereas other information was exempt under section 42 (FOIA) (legally privileged information). Reliance was also placed on section 36 FOIA (prejudice to effective conduct of public affairs). The Commissioner rejected Mr O’Brien’s complaint about DBERR’s refusal decision, save that he did order that the content of one of the disputed documents be disclosed. The Tribunal upheld Mr O’Brien’s appeal against the Commissioner’s decision. It held that whilst the exemptions afforded under sections 35 and 42 were engaged in respect of the disputed information, on an application of the public interest test, the public interest weighed in favour of the information being disclosed (EA/2008/0011).

DBERR, which was named as an additional party before the Tribunal, appealed the decision to the High Court. The Commissioner participated in the appeal, not on the basis that he was formally supporting or resisting the appeal, but rather because: (a) he had some ‘concerns’ about the way in which the Tribunal had reached its conclusions in this case; and (b) he considered it important to draw the court’s attention to these concerns, not least because of the precedent-setting effect of the Tribunal’s decision. At the heart of the appeal before the High Court was the question whether the Tribunal had lawfully applied the section 2(2)(b) public interest test to the dipsuted information.

Wyn Williams J upheld the appeal in part. He found that the Tribunal’s application of the public interest test to information falling within the ambit of section 35 could not be impugned. However, he concluded that the Tribunal’s application of the public interest test to the information falling within the ambit of section 42 was fatally flawed. He reached this conclusion in particular on the basis that: (a) in accordance with a long line of Tribunal decisions starting with Bellamy v ICO, it was clear that there was a strong public interest in maintaining the confidentiality of legally privileged information which was effectively built into the section 42 exemption; and (b) the Tribunal’s reasons did not clearly demonstrate that it had taken this strong public interest into account when weighing the public interest balance. The importance of the judgment lies in the fact that it constitutes an authoritative judgment on how legally privileged information should be dealt with under FOIA.

The judgment is also significant in that: (1) it criticises the Tribunal for having failed to state clearly which of the disputed information fell within section 35 and which fell within section 42 (the Tribunal had simply found that the information fell within section 35 ‘and/or’ section 42); and (2) it confirms that, when dealing with the application of the public interest test where a number of exemptions are engaged, the Tribunal should ensure that it does not simply bundle all the public interest test considerations together but instead conducts discrete analyses of the public interests relevant to particular exemptions.


US Information on Guantanamo Detainee to be Kept Secret

February 5th, 2009 by Anya Proops KC

In a ruling handed down yesterday, the High Court relucantly held that US documents containing information relating to the treatment of Binyam Mohamed, the last recognised British resident to be held in Guantanamo Bay, should be with withheld from publication (Binyam Mohamed v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 152 (Admin); 11KBW’s Karen Steyn appeared on behalf of the Secretary of State). The case is a highly sensitive one as Mr Mohamed alleges that evidence allegedly implicating him in terrorist activity was obtained as a result of torture. It is his position that the withheld information would suport his case on this issue. The Court based its ruling on a statement made by the Foreign Secretary, David Miliband, to the effect that disclosure of the information would pose a risk to intelligence co-operation from the US if it was published and would, as a result, put the UK general public at risk. The judges (Thomas LJ and Lloyd Jones J) made clear in the ruling that they had serious concerns about the position that the goverment was adopting on the question of whether the information should be published, not least because, in their view, the information in question could not itself possibly be described as sensitive US intelligence. However, they went on to conclude that they had no alternative but to refuse publication in light of Mr Miliband’s statement. Notably, Clive Stafford Smith, who represents Mr Mohammed has commented that the judgment is in fact ‘canny’ because: ‘If the judges had ordered the material to be revealed, over the government’s objection, there would have been a protracted appeal and nobody would have learned anything for months or years. Instead, they have placed both the British government and the Obama administration in the immediate and uncomfortable position of having to confess whether they want to cover up evidence of torture.’  In a statement, the White House thanked the UK government ‘for its continued commitment to protect sensitive national security information’. In a statement made in Parliament today, Mr Miliband asserted that the question whether this information should be made public was a decision which only the US could take and that the UK ought not to interfere with those decisions. The ruling highlights the particular difficulties which courts face when dealing with applications for disclosure of information in the face of Government assertions that disclosure will damage national security.

The judgment:

Media coverage

Commentary by Clive Stafford Smith