AC-2025-LON-002497 - [2025] EWHC 2842 (Admin)

The ordinary position is that the court should only have regard to and rely on material that is available to and seen by all parties to a claim. That ordinary position is maintained when the court determines that material should be withheld on grounds of public interest immunity (‘PII’) because the consequence of a successful PII claim is, in almost all cases (Footnote: ¹), that the court will disregard the PII material. A CMP is an exception to the ordinary position, as the effect is to allow a party to rely on material which, on public interest grounds, is withheld from disclosure to another party or parties (‘CLOSED material’); and the court can base its decision on such material.

In Al Rawi v Security Service [2012] 1 AC 531, [2011] UKSC 34 the Supreme Court considered the question whether a CMP may be employed in the absence of statutory authority. In Al Rawi the claimants alleged that the Security Service and other organs of the state had been complicit in their detention and ill-treatment at various locations abroad, including Guantanamo Bay. The causes of action pleaded included false imprisonment, trespass to the person, conspiracy to injure, torture and breach of the Human Rights Act 1998.

The Supreme Court held that, subject to two “narrowly defined” exceptions ([65]), it is not permissible for the court to adopt a CMP in an ordinary civil claim or a judicial review claim. Such a procedure requires parliamentary authorisation ([69]). The exceptions relate to cases where “the whole object of the proceedings is to protect and promote the best interests of a child [and] disclosure of some of the evidence would be so detrimental to the child’s welfare as to defeat the whole object of the exercise” ([63]); and cases where “the whole object of the proceedings is to protect a commercial interest”, and where full disclosure would “render the proceedings futile” (such as intellectual property proceedings in which confidentiality rings are commonplace) ([64]). The Supreme Court left open the question whether, in addition, a CMP can be employed where the parties agree ([46]).

Although Al Rawi was a civil claim for damages founded in tort and the Human Rights Act 1998, Lord Lloyd-Jones observed in Ramoon v Governor of the Cayman Islands [2023] UKPC 9 (in a judgment given by the Privy Council, with which Lord Reed, Lord Hodge, Lord Briggs and Lord Kitchin agreed) “Lord Dyson was clearly correct in his view (at para 62) that there could be no principled basis for distinguishing between ordinary civil claims and claims for judicial review” ([41]).