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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Zubaydah v Foreign And Commonwealth Office & Ors [2022] EWCA Civ 334 (16 March 2022) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2022/334.html Cite as: [2022] EWCA Civ 334, [2022] WLR(D) 125, [2022] 4 WLR 40 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Lane
Strand, London, WC2A 2LL |
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B e f o r e :
PRESIDENT OF THE QUEEN'S BENCH DIVISION
LADY JUSTICE THIRLWALL
and
LORD JUSTICE MALES
____________________
ZAYN AL-ABIDIN MUHAMMAD HUSAYN (ABU ZUBAYDAH) |
Appellant/ Claimant |
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- and - |
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(1) THE FOREIGN AND COMMONWEALTH OFFICE (2) THE HOME OFFICE (3) THE ATTORNEY GENERAL |
Respondents/Defendants |
____________________
David Blundell QC, Melanie Cumberland & Andrew Byass (instructed by the Government Legal Department) for the Respondents/Defendants
Hearing date: 1 March 2022
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Crown Copyright ©
Lord Justice Males:
Factual background
The claim in this action
The application for a preliminary issue
The provisions of the 1995 Act
"11. Choice of applicable law: the general rule.
(1) The general rule is that the applicable law is the law of the country in which the events constituting the tort or delict in question occur.
(2) Where elements of those events occur in different countries, the applicable law under the general rule is to be taken as being—
(a) for a cause of action in respect of personal injury caused to an individual or death resulting from personal injury, the law of the country where the individual was when he sustained the injury;
(b) for a cause of action in respect of damage to property, the law of the country where the property was when it was damaged; and
(c) in any other case, the law of the country in which the most significant element or elements of those events occurred.
(3) In this section "personal injury" includes disease or any impairment of physical or mental condition."
"12. Choice of applicable law: displacement of general rule.
(1) If it appears, in all the circumstances, from a comparison of—
(a) the significance of the factors which connect a tort or delict with the country whose law would be the applicable law under the general rule; and
(b) the significance of any factors connecting the tort or delict with another country,
that it is substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other country, the general rule is displaced and the applicable law for determining those issues or that issue (as the case may be) is the law of that other country.
(2) The factors that may be taken into account as connecting a tort or delict with a country for the purposes of this section include, in particular, factors relating to the parties, to any of the events which constitute the tort or delict in question or to any of the circumstances or consequences of those events."
The approach to section 12
"203. I turn to section 12. At para 149 the Court of Appeal identified these further four principles:
'(7) The exercise to be conducted under section 12 is carried out after the court has determined the significance of the factors which connect a tort or delict to the country whose law would therefore be the applicable law under the general rule.[2] (8) At this stage there has to be a comparison between the significance of those factors with the significance of any factors connecting the tort or delict with any other country. The question is whether, on that comparison, it is 'substantially more appropriate' for the applicable law to be the law of the other country so as to displace the applicable law as determined under the 'general rule'. (9) The factors which may be taken into account as connecting a tort or delict with a country other than that determined as being the country of the applicable law under the general rule are potentially much wider than the 'elements of the events constituting the tort' in section 11. They can include factors relating to the parties' connections with another country, the connections with another country of any of the events which constitute the tort or delict in question or the connection with another country of any of the circumstances or consequences of those events which constitute the tort or delict. (10) In particular the factors can include (a) a pre-existing relationship of the parties, whether contractual or otherwise; (b) any applicable law expressly or impliedly chosen by the parties to apply to that relationship, and (c) whether the pre-existing relationship is connected with the events which constitute the relevant tort or delict.'
204. In every case to which the 1995 Act applies in which the court has considered the general rule under section 11, the court must consider whether the general rule is displaced under section 12. There is an illuminating discussion of the general approach in Dicey, Morris & Collins, The Conflict of Laws, 15th ed, para 35-148. The editors say that the application of the displacement rule in section 12 first requires, taking account of all the circumstances, a comparison of the significance of the factors which connect the tort[3] with the country the law of which would be applicable under the general rule (in this case English law) and the significance of any factors connecting the tort with another country (here Russia). The word tort is italicised in the text in Dicey. The editors say that secondly, it then has to be asked, in the light of the comparison, whether it is 'substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues,' to be the law of that other country.
205. The editors note that the general rule has been displaced on very few occasions. They further observe that, although section 12 applies in all cases to which section 11 applies, it would seem that the case for displacement is likely to be most difficult to establish in the case of section 11(2)(c) because the application of that provision itself requires the court to identify the country in which the most significant element or elements of the tort are located. Importantly they stress the use of the word 'substantially', which they describe as the key word, and conclude that the general rule should not be dislodged easily, lest it be emasculated. The party seeking to displace the law which applies under section 11 must show a clear preponderance of factors declared relevant by section 12(2) which point to the law of the other country.
206. That approach is borne out by the cases. The idea that 'substantially' was the key word was derived from the judgment of Waller LJ in Roerig v Valiant Trawlers Ltd [2002] EWCA Civ 21, [2002] 1 WLR 2304, at para 12(v). The principles were considered in more detail by Brooke LJ in R (Al-Jedda) v Secretary of State for Defence [2006] EWCA Civ 327, [2007] QB 621 at paras 103 and 104, where he noted that the 1995 Act derived from a report of the Law Commission, from which he quoted. He added that Lord Wilberforce, who was a member of the House of Lords Committee which considered the Bill, had expressed the view that it would be a 'very rare case' in which the general rule under section 11 would be displaced: 'Prima facie there has to be a strong case'."
"Justification. What justification is there for the existence of the conflict of laws? Why should we depart from the rules of their own law and apply those of another system? This is a vital matter on which it is necessary to be clear before we proceed any further. The main justification for the conflict of laws is that it implements the reasonable and legitimate expectations of the parties to a transaction or an occurrence. …"
"3.2 … It is built upon part of our existing law and accords with the law throughout much of the rest of Europe. It would promote uniformity and discourage forum shopping. To the extent that the parties have any expectations at all, a general rule based on the applicability of the lex loci delicti probably accords with them. Where, as will often happen, one of the parties is connected with the place of the wrong, as where he is habitually resident there, it is right that he should be able to rely on his local law. As for the person who acts in a country with which he has no lasting connection, he can expect that if he commits a wrong he will be liable to the extent that the law in question stipulates. Similarly if he has a wrong committed against him, he can expect to have no more preferential treatment than if the wrong had been committed against somebody habitually resident there."
The judgment
"60. … The locations to which the CIA took the claimant were not 'incidental', as far as that agency was concerned; and it was the CIA that caused the injuries to the claimant."
"62. For present purposes, I am prepared to accept that all of this is so. Its significance for the determination of the applicable law is, however, in my view limited. Any provision of information to be used in interrogation by the CIA was a component in the overall exercise undertaken by the CIA. It was the methods adopted by the CIA in putting the questions to the claimant that are said to have occasioned the physical and psychological harm to him."
"69. Whilst I accept the information allegedly provided to the CIA is more likely than not to have come from officials of SIS/SyS who were, at the time, in England, the significance of this imparting of information in the context of the present claim is limited because it is only an element of the overall treatment of the claimant by the CIA in the Six Countries. …"
Submissions
Analysis
(1) The claimant had no control whatever over his location and in all probability no knowledge of it either. The case is as far as it is possible to be from the scenarios contemplated by the 1995 Act (and the Law Commission Report which led to it) where a claimant travels voluntarily to a foreign country, thereby submitting himself to its laws, and suffers personal injuries there.
(2) So far as the Services were concerned, the claimant's location from time to time was irrelevant and may well have been unknown. There is no evidence or even assertion that the Services ever took steps to find out where the claimant was. It is fanciful (and has not been alleged) that the Services ever considered that they were submitting themselves successively to the laws of Thailand, Poland, the United States (or possibly Cuba), Morocco, Lithuania and Afghanistan or that they ever expected or intended their conduct to be judged by reference to those laws.
(3) There is no reason to doubt that the claimant was rendered to the Six Countries precisely because this would enable him to be detained and tortured outside the laws and legal systems of those countries. This is starkly illustrated by the claimant's rendition from Guantánamo Bay to Morocco in March 2004, allegedly in order to avoid an expected ruling by the United States Supreme Court which would have enabled detainees to challenge the legality of their detention at Guantánamo Bay. (In this connection I note that the Senate Report found that the United States Supreme Court decision in the case of Rasul v Bush 542 U.S. 466 (2004) prompted the CIA to move a number of detainees out of Guantánamo Bay). The claimant was for all practical purposes detained throughout in a series of legal "black holes", beyond the reach of any legal system. It can reasonably be assumed for the purpose of this appeal, and in any event is an element of the tort alleged against the defendants, that the Services were aware that the claimant was being held in this way even if they did not know where he was being held at any given time. The fact that, in theory, the claimant's treatment may have been contrary to the laws of the Six Countries in which he was detained does not detract from this analysis.
The cases
Section 14
"14. Transitional provision and savings.
…
(2) Nothing in this Part affects any rules of law (including rules of private international law) except those abolished by section 10 above.
(3) Without prejudice to the generality of subsection (2) above, nothing in this Part—
(a) authorises the application of the law of a country outside the forum as the applicable law for determining issues arising in any claim in so far as to do so—
(i) would conflict with principles of public policy…"
Disposal
Lady Justice Thirlwall:
Dame Victoria Sharp PQBD:
Note 1 The English commissioners were Mr Justice Peter Gibson, Mr Trevor Aldridge, Mr Jack Beatson, Mr Richard Buxton QC and Professor Brenda Hoggett QC. [Back] Note 2 I note that this will be so when the general rule is derived from section 11(2)(c) ("the law of the country in which the most significant element or elements of those events occurred"), as was the position inVTB Capital v Nutritek. It will not be so in the case of personal injury, death or damage to property, when section 11(2)(a) or (b) applies, so that ascertainment of the general rule requires nothing more than identification of the location of the individual or property concerned: no determination of the significance of connecting factors is required at that stage. [Back] Note 3 Lord Clarke’s emphasis, although the italics do not appear in the Official Law Report. The emphasis is important. [Back]