Peter Skelton acted for the defendants (the Security Service and others) in the case of Al Rawi & Others v The Security Service & Others in the Supreme Court [2011] UKSC 34. The question in this appeal was whether the courts in England and Wales have a common law power to order a “closed material procedure” for the whole or part of the trial of a civil claim for damages.

The appeal arose in the context of the Guantánamo Bay ligitation, in which a number of claimants (including Binyam Mohamed and Martin Mubanga) sought compensation from the British Government for their alleged rendition and torture by foreign authorities, at various locations, including Afghanistan and Cuba. The five defendants/appellants were the Security Service, the Secret Intelligence Service, the Foreign & Commonwealth Office, the Home Office and the Attorney General.

The question in this appeal was whether the court had the power to order a “closed material procedure” for the whole or part of the trial of a civil claim for damages. This question is formulated as a preliminary issue which arose in the context of claims brought by the respondents against the appellants. The respondents claimed compensation for their alleged detention, rendition and mistreatment by foreign authorities in various locations, including Guantánamo Bay.

They claimed that the appellants had been complicit in what they alleged had happened. These claims settled prior to the hearing before the Supreme Court. However, the appellants pursued their appeal which was accepted by the Supreme Court on the basis that a decision is needed to clarify the law on this point of general importance.

The appellants claimed that they had security sensitive material within their possession which they wished the court to consider in their defence but which could not be disclosed to the respondents. They requested that this material be put into a closed defence and that the proceedings take place with parallel open and closed hearings and judgments. The respondent and the other claimants objected and this dispute formed the basis of the preliminary issue. The preliminary issue defined “closed material procedure” as a procedure whereby a party can withhold certain material from the other side where its disclosure would be contrary to the public interest. The closed material would be available to special advocates, who act in the interests of the excluded party but who cannot take instructions from them, and the court. At first instance, Silber J granted a declaration that it could be lawful and proper for a court to order a closed material procedure in a civil claim for damages: [2009] EWHC 2959 (QB). The Court of Appeal (Lord Neuberger MR, Maurice Kay and Sullivan LJJ) disagreed. They denied that a court had such a power: [2010] EWCA Civ 482.

The Supreme Court, by a majority, dismissed the appeal.