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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kamoka & Ors v Security Service & Ors [2017] EWCA Civ 1665 (25 October 2017) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2017/1665.html Cite as: [2017] EWCA Civ 1665, [2017] WLR(D) 748 |
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ON APPEAL FROM
THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MOYLAN
and
SIR STEPHEN RICHARDS
____________________
(1) ISMAIL ![]() (2) ZIAD ALI HASHEM (3) ABDEL NASSER BOUROUAG (4) KHALED ABUSALAMA AL ALLAQI (5) ALIA BIBI HASSAN (Administratrix for the Estate of FARAJ HASSAN AL-SAADI) |
Appellants |
|
and |
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(1) THE SECURITY SERVICE (2) THE SECRET INTELLIGENCE SERVICE (3) THE ATTORNEY GENERAL (4) THE FOREIGN & COMMONWEALTH OFFICE (5) THE HOME OFFICE |
Respondents |
____________________
Rory Phillips QC, Kate Grange QC and Richard O'Brien (instructed by the Government Legal Department) for the Respondents
Angus McCullough QC and Jennifer Carter-Manning (instructed by Special Advocates' Support Office) as Special Advocates
Hearing dates: 18 – 21 July 2017
____________________
Crown Copyright ©
Lord Justice Flaux:
Introduction
Relevant background and outline of the claims
"8. Claimant 1 was served with a Notice of Intention to Deport on 3 October 2005 and detained. He appealed to SIAC. In December that year he was arrested and charged with terrorist offences. His SIAC appeal was stayed. In June 2007, along with Claimants 3 and 4, he pleaded guilty to terrorist offences in the Kingston-upon-Thames Crown Court and he was sentenced to 3 years 9 months' imprisonment. He completed his custodial sentence on 21 October 2007, and re-entered immigration detention. He was made the subject of a Control Order on 2 April 2008. He was, with Claimants 2 to 5, the subject of review in November 2008, wherein Mitting J found that the LIFG remained "a risk to the national security of the United Kingdom", see: SSHD v AR and Others [2008] EWHC 2789 (Admin). He was then subject to an individual review: SSHD v AU [2009] EWHC 49. His Control Order was upheld. His Control Order was renewed in April 2009 but revoked in November of that year. Claimant 1 did not attempt an appeal from the review by Mitting J. He did seek to appeal the renewal, but withdrew that appeal following the revocation.
9. Claimant 2 was served with a Notice of Intention to Deport on 3 October 2005, and appealed to SIAC. His case was anonymised as "DD" and was heard alongside that of Claimant 5 [as "AS"]. In the course of SIAC proceedings, the Claimant submitted that the SSHD's case on safety on return was bound to fail, since the Memorandum of Understanding ["MoU"] agreed, and the attendant arrangements for monitoring the MoU, were insufficient to protect him if he were deported to Libya. Following a hearing in October and November 2006, in April 2007 SIAC allowed Claimant 2's appeal (along with that of Claimant 5) on the ground that although he was a threat to national security, there was a real risk of breach of Article 3 of the European Convention on Human Rights if he was returned to Libya. The appeal by the Secretary of State from this decision failed; see: AS and another v SSHD [2008] EWCA Civ 289 (Admin). On 4 April 2008, Claimant 2 was also served with a Control Order. Claimant 2 was a party to the decision of Mitting J of November 2008. His Control Order was upheld by Mitting J in December 2008: SSHD v AR [2008] EWHC 3164 (Admin). He did not seek to appeal that decision. His Control Order was renewed on 31 March 2009. He appealed that decision, and his appeal has not been withdrawn. The Control Order was revoked on 22 January 2010.
10. In May 2004 Claimant 3 admitted offences contrary to the Forgery and Counterfeiting Act 1981, and was sentenced along with Claimant 4. Claimant 3 received 3½ years' imprisonment. He was released from prison in June 2005. On 3 November 2005 he was served with a Notice of Intention to Deport and detained. He appealed to SIAC. In December 2005, he was charged with terrorist offences and moved from immigration detention into custody. His SIAC appeal was stayed in December 2005. On 11 June 2007 he pleaded guilty to an offence contrary to s.17 of the Terrorism Act 2000 and was sentenced to 1 year 10 months' imprisonment. He completed the sentence and re-entered immigration detention, being released on bail in July 2007. A Control Order was served on him on 4 April 2008. He too was a subject of the judgment in the Control Order review of 14 November 2008, where the Court found that the LIFG remained a risk to national security. His Control Order was upheld on 20 March 2009; see SSHD v AT [2009] EWHC 512 (Admin). The Order was renewed in April 2009 and revoked in August of that year. Claimant 3 appealed against the Order upholding his Control Order and was successful on 7 February 2012, the matter being remitted to the High Court. It has not yet been heard.
11. Claimant 4 also admitted forgery offences on 12 May 2004 and received 3½ years' imprisonment. He too was served with Notice of Intention to Deport on 3 November 2005, and appealed to SIAC. He was made subject to immigration detention. On 12 December 2005 he was arrested and charged with terrorist offences and remanded into custody. His SIAC appeal was stayed on 15 December. On 11 June 2007 he too pleaded guilty to an offence contrary to the Terrorism Act 2000 and was sentenced to 1 year 10 months' imprisonment. On the same day he entered immigration detention, and on 2 July was released on bail by SIAC. A Control Order was served on 4 April 2008. Claimant 4 was another subject of the judgment of 14 November 2008. On 16 March 2009 a fresh Control Order was made, the first Order being quashed in a judgment of 20 March: AW v SSHD [2009] EWHC 512 (Admin). The second Control Order was revoked on 26 June 2009. Claimant 4 sued for false imprisonment in respect of the first Control Order, and his claim was settled in May 2011. The Claimant sought to challenge the second Control Order, but withdrew the challenge after the Order was revoked.
12. …Claimant 5 was served with Notice of Intention to Deport on 14 December 2005 and was detained. He appealed to SIAC and his case was heard with that of Claimant 2. He was party to an application for further disclosure in October 2006. The appeal was heard in October and November 2006, leading to the judgment in April 2007 allowing the appeal on the basis of a lack of safety on return. Claimant 5 was released on bail on 17 May 2007. He was a respondent to the unsuccessful appeal by the SSHD in February and March 2008. Claimant 5 was the subject of a Control Order served on 4 April 2008, renewed on 1 April 2009. The Order was revoked by Mitting J, on the ground it was no longer necessary. Mitting J declined to quash the Control Order on the ground of non-disclosure. Claimant 5 does not seek damages for the period during which he was subject to a Control Order."
"437 Further and/or alternatively, if such matters were disclosed in whole or in part, the Home Secretary's Deportation Decisions were unlawful because no decision-maker, directing herself reasonably on the full facts as they were or ought to have been known to her (assuming other Defendants having acted with due candour in making relevant disclosures to her), could have reached the conclusion that there was a reasonable prospect of C1-C5 being deported, as:
437.1 The Defendants knew that C1-C5 faced a risk of torture on return to Libya.
437.2 The only method of reducing that risk to a level where a deportation could lawfully take place contemplated by the Defendants was by obtaining assurances.
437.3 The reliability of those assurances depended fundamentally on an assessment that Colonel Qadhafi would abide by them, it being assessed that Colonel Qadhafi was a pragmatic character who would do so only if he considered it in his own self-interest.
437.4 Accordingly, in circumstances where Colonel Qadhafi and/or his Security Services knew that:
437.4.1 the Security Services (at least) were willing to participate in the covert abduction of Bel Hadj and Al Saadi and/or to solicit detailed information from their subsequent interrogations when either no assurances or no adequate assurances were in place as to their treatment (as aforesaid);
437.4.2 the Security Services had participated in the covert abduction of Bel Hadj and Al Saadi as a precursor to the visit of the Prime Minister Tony Blair by way of reward to Libya for its past and future co-operation and had explicitly recorded this fact in the 18 March 2004 letter from a senior MI6 officer Mark Allen;
437.4.3 the Security Services had been complicit in the subsequent abuse and arbitrary detention of the Libyan Detainees as set out …above; and
437.4.4 the Defendants had a high interest in maintaining good relations with Libya as failure to do so could mean the revelation of their role in the unlawful rendition and subsequent interrogations of Bel Hadj and Al Saadi,
no reasonable decision-maker could have concluded prior to 3 October 2005, and maintained that conclusion until 7 April 2008, either that the balance of advantage in the developing relationship lay with Libya and was far more crucial to it, or that Colonel Qadhafi would consider it necessary to comply with the assurances in order to maintain good relations with the UK. On the contrary the Security Services' covert role in the abduction, rendition, arrest and/or subsequent interrogation of Bel Hadj, Al Saadi, Abushima (C6) and/or Khalifa (C9) and other Libyan detainees made it far more likely that Colonel Qadhafi and/or his Security Services would conclude that the request for an MOU was a public relations exercise designed to please the courts as opposed to a genuine request that Libya abide by the assurances.
437.5 Further and/or alternatively, and for the same reasons, no reasonable decision-maker could have anticipated that SIAC, if it were possessed of all these facts as it should have been, would conclude that the assurances were sufficient to contain the risk to the Claimants."
The strike out application and the judgment below
"Essentially, the Defendants submit that the statutes providing for SIAC appeals and for Control Orders circumscribe any challenge of the kind made here. They say the only proper course for Claimants 1 to 5 is to seek to appeal the relevant decisions of SIAC and the Control Orders. Even if statute does not require that course, pursuit of private law action represents an abuse of process of the Court."
"52 I have concluded that the SIAC Act does not represent an absolute bar to private law action in all circumstances which might call into question some or all of the basis of conclusions of SIAC. The question is not easy. As will appear below, my conclusion on this issue does not represent a simple answer as to whether these cases can proceed.
53 The facts of the case must be borne in mind. Any appeal here would of necessity be by a winning SIAC Appellant, or an Appellant whose SIAC appeal was conceded. It seems unlikely Parliament had that in mind when restricting the rights of challenge. Moreover, the essence of the Claimants' case is that SIAC was prevented from reaching a proper conclusion by a withholding of material, in breach of the Defendants' duty of candour, discovered after the event. If such a breach were alleged or discovered during the currency of a SIAC appeal (or an appeal from SIAC) then the statute would almost certainly compel the Claimants, in the Court of Appeal, to raise the matter in SIAC, or potentially by way of judicial review in the face of an adverse ruling by SIAC.
54 However, on the unusual facts of this case, it seems to me that the language of Section 1(A) is not of sufficient clarity on its own to found a strike-out of these claims. The Claimants do not in essence "question" a "decision" taken by SIAC, much less suggest there was a "hard-edged error of law" at the time. The claim is that the outcome, favourable to the Appellants, was reached despite a then-undiscovered abuse of process, which led to conclusions by the Commission adverse to the Appellants but not determinative of their appeals. On those facts, and bearing in mind the need for strict construction when considering the abrogation of important rights and remedies at common law, I conclude this issue in the Claimants' favour."
"However, both sets of statutory provisions are intended to confine or constrain challenges to SIAC or Control Order judgments. The legislative schemes in each case underline the need, at the very least, for the Court to be highly vigilant to prevent abuse."
"At the heart of these claims is the suggestion of a suppression of evidence which would or should have altered the conclusions of SIAC (if not the outcome of the appeals) and the outcome of the Control Order proceedings. That is a serious allegation which at least if credible, would require a potential remedy. At the moment, it is not possible for me to compare the ambit of the evidence said to be fresh, or to be clear as to the extent of duplication with the earlier proceedings. I am not able to say whether the evidence advanced is fresh, since I have not been made privy to the CLOSED evidence in either case."
"The Defendants argue that it is for the Claimants to show that the evidence is fresh, in the sense that it "entirely changes the case", a requirement identified by Gibson LJ in Walpole v Partridge and Wilson [1994] QB 106, at paragraph 115E. However, I do not see how such a requirement can apply where CLOSED proceedings in the earlier litigation means a Claimant is not privy to all the evidence that was laid against him. He cannot say if it is fresh. Where there is any credible basis for considering that there may be important fresh evidence, then it must be for the Defendants, who seek to strike out the claims, to show that the evidence is not fresh, or not sufficiently material. The same problem would arise if the Claimants were to seek to re-open the SIAC appeals or the Control Order proceedings."
"The essence of the claim advanced by the Claimants is that there has been a suppression of evidence, a breach of the "duty of candour", and that had evidence not been suppressed, the proceedings in SIAC, and the Control Order proceedings, could not have been mounted. It is said it would have been unreasonable of the Defendants (in particular the SSHD) to have sought to deport the Claimants to Libya, had the information now revealed in the course of the fall of the Qadhafi regime been made available to the relevant decision-maker: there would never have been a viable national security case, nor a reasonable prospect of removal in the face of what the Claimants term the "new material". It is said that, but for the suppression of evidence, the Claimants would never have been subject to immigration detention and/or the restriction imposed by Control Orders. Those propositions underpin the claims of false imprisonment and misfeasance in public office."
"i) SIS/SyS's knowledge of rendition of individuals by the United States to Libya;
ii) SIS/SyS's reason to be concerned about the treatment of the Libyan Detainees;
iii) SIS/SyS's involvement in US renditions;
iv) SIS/SyS's claim to entitlement to special access;
v) SIS/SyS's "direct" and "indirect" interrogation of Libyan Detainees;
vi) SIS/SyS's "awareness" that Bel Hadj was being mistreated;
vii) Joint operations between SIS/SyS and the Libyan Security Services; and
viii) The role of the Qadhafi Development Foundation (QDF) as cover or "proxy" for the Libyan Security Services."
"The implication of these passages is straightforward. Those representing the Claimants were already alive to questions of rendition, the reliability of information resulting from detainee reporting, the sharing of intelligence and relationships between the Security Services of Libya, Britain and the US, and the link between those issues and the Fifth Defendant's case on safety on return to Libya. The Special Advocates representing the interests of the Claimants must be taken to have been alive to the way matters were put, since within the Rules of SIAC, the role of the Special Advocate is to further the case presented by an Appellant's ordinary lawyers."
"I am able to state here only that there was wide disclosure of top secret documents bearing on the Claimants' concerns as well as important closed oral evidence. A review of the disclosure made to SIAC leads to my clear conclusion that there was no suppressio veri."
"The Special Advocates who appeared in SIAC were alive to the concerns about rendition, and considered evidence bearing on the issues. There were "sometimes vigorous" arguments about disclosure in SIAC. However, there were no submissions by the Special Advocates that the Secretary of State had breached the duty of disclosure. They did not make submissions to the effect that the Secretary of State's case was all along predictably hopeless. They did not make submissions to the effect that the Secretary of State, or any other Defendant to this action, acted in bad faith."
He said at [29] that he saw no basis for concern in either OPEN or CLOSED evidence that the findings of SIAC or the High Court in the Control Order proceedings were tainted by reliance on detainee reporting.
"32 It is necessary to focus on the role of the Special Advocate. At the conclusion of the case, I asked the parties and the Special Advocates to suggest the answer to the following hypothetical question: if in the course of closed proceedings Special Advocates were to conclude that closed material may reveal the basis for a private law claim on the part of an Appellant, what should they do? What may they do? The answers were, again, extensive. But in summary all are agreed that the role and functions of a Special Advocate are confined by statute; that although Special Advocates act in the interests of the party concerned, he or she is not "responsible to the person whose interests he is appointed to represent", see: SIAC Act 1997, Section 6(a) and paragraph 7(5) of the Schedule to the Prevention of Terrorism Act 2005. They have specified functions [SIAC Procedure Rules 2015, Rule 35; CPR 76.24], in effect confined to adducing evidence, cross-examining witnesses and making submissions, as to admissibility, procedure and substance. Special Advocates do not represent an excluded party, there is no lawyer/client relationship in the ordinary sense and the attendant professional obligations do not arise. Perhaps most important is the fact that, once seised of the closed evidence, the Special Advocate cannot communicate with the party whose interest he or she represents, save to a limited extent with the consent of the other party, and/or the Court or Commission.
33 How then can the excluded party be fixed with the actions and decisions of the Special Advocate once in closed proceedings? Not only does the excluded party not give instructions which, provided they are proper, are acted upon: the excluded party remains ignorant of what decisions and actions the Special Advocates take, unless and until they are revealed, as in some measure at least, I have been able to do here."
"Does all that mean that abuse of process in the Hunter sense simply has no application where closed material proceedings arise? On one level that would be an obvious answer. It would however produce anomalous results. The limitations arising from closed procedures operate prospectively as well as retrospectively. If the instant case were to proceed to full trial, the great part of the critical evidence would (again) be heard in closed. The Claimants would again be ignorant of it, and still be unrepresented in the full sense. That would be so here, despite the existence of the material discovered in Libya which has stimulated these claims. Would that mean that, if these Claimants were dissatisfied following a full trial of their claims, the most significant parts of which were in closed, they could simply begin again? The answer to that question must be "no", because to permit that second action would be to permit a collateral challenge to the Court's ruling, and thus to sanction a Hunter type abuse. If the answer must be "no", then why should it be otherwise now?"
"39 I am in no doubt that the instant proceedings, viewed objectively, represent a collateral challenge to the judgments in the Control Order proceedings and to the decision of SIAC in relation to C2 and C5. Those decisions were final decisions of courts of competent jurisdiction. The Claimants did not have "a full opportunity to challenge the decision[s] in the court[s] by which [they] were made", because the proceedings were closed. However, they had as full an opportunity as could be devised, given the constraints imposed by the requirements of national security, as expressed in the relevant statutory provisions. Perhaps more to the point, they have now had, in effect, as full an opportunity as they would get if the litigation proceeded. They also have this judgment, written in the light of and concomitant with the closed judgment, the latter involving an extremely full consideration of all the evidence, with the Claimants' concerns in mind.
40 I have recorded my conclusions about the evidence above, and addressed the evidence at very much greater length in the closed judgment. I was only able to reach my conclusions after that detailed scrutiny. Given the very unusual facts in this case, the Claimants and their legal advisers had some basis for considering that they might have acquired material capable of altogether changing the nature of the case. Perforce they could not be sure of it. I therefore cannot regard it to have been an abuse of process to have commenced the proceedings in these exceptional circumstances, or to have prosecuted the proceedings thus far.
41 However, as matters now stand, it would in my judgment represent an abuse of process if proceedings were further prolonged, to the extent I now indicate."
"In respect of C1, C3 and C4, their cases require a little more consideration. I can see no distinction between their cases and those of C2 and C5 either in respect of the detainee evidence issue, or in respect of safety on return; or indeed in respect of any of the concerns raised by C2 and C5. That identity of interest is reinforced by the fact that the Secretary of State conceded their appeals in the aftermath of the successful appeals by C2 and C5. However, I am not in a position to be sure that no valid distinction can be made. I therefore will permit a moderately short period, if these Claimants desire it, during which C1, C3 and C4 may seek to distinguish their position if they see fit."
The Grounds of Appeal
A. The common law abuse doctrine per se is inapplicable to conduct of an original CLOSED hearing by Special Advocates.
B. There has been no abuse of process looked at in the round and in the light of all material factors.
C. The strike out in these procedural circumstances amounts to a denial of access to court and a subversion of the Justice and Security Act.
D. The logic of Henderson v Henderson is inapplicable to actions or omissions of Special Advocates.
E. There was no "full opportunity" for the appellants in earlier proceedings to litigate the issues that are now the subject of the Hunter objection to re-litigation; and the strike-out judgment could not supplement or correct earlier deficiencies.
F. The Court operated under an erroneous conclusion that non-disclosure to SIAC was the appellants' only case.
G. The Court reached an erroneous conclusion that there had been full disclosure to SIAC.
The law on abuse of process
"This is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power."
"The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made."
"The law discourages relitigation of the same issues except by means of an appeal. The Latin maxims often quoted are nemo debet bis vexari pro una et eadem causa and interest rei publicae ut finis sit litium. They are usually mentioned in tandem but it is important to notice that the policies they state are not quite the same. The first is concerned with the interests of the defendant: a person should not be troubled twice for the same reason. This policy has generated the rules which prevent relitigation when the parties are the same: autrefois acquit, res judicata and issue estoppel. The second policy is wider: it is concerned with the interests of the state. There is a general public interest in the same issue not being litigated over again. The second policy can be used to justify the extension of the rules of issue estoppel to cases in which the parties are not the same but the circumstances are such as to bring the case within the spirit of the rules."
"But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not."
"Criminal proceedings are in my opinion in a special category because although they are technically litigation between the Crown and the defendant, the Crown prosecutes on behalf of society as a whole. In the United States, the prosecutor is designated "The People." So a conviction has some of the quality of a judgment in rem, which should be binding in favour of everyone. As Lord Diplock pointed out in Saif Ali v. Sydney Mitchell & Co. [1980] AC 198, 223, this policy is reflected in section 13 of the Civil Evidence Act 1968, which provides that in an action for libel or slander, proof of the plaintiff's conviction is conclusive evidence that he committed the offence of which he was convicted."
"…it is clear that an attempt to re-litigate in another action issues which have been fully investigated and decided in a former action may constitute an abuse of process, quite apart from any question of res judicata or issue estoppel on the ground that the parties or their privies are the same. It would be wrong to attempt to categorise the situations in which such a conclusion would be appropriate. However, it is significant that in the cases to which we were referred, where this conclusion was reached, the attempted re litigation had no other purpose than what Lord Diplock described as "mounting a collateral attack upon a final decision … which has been made by another court of competent jurisdiction in previous proceedings in which … (the party concerned) had a full opportunity of contesting the decision of the court by which it was made."
"Since the cases in which the retrial of an issue (in the absence of an estoppel) has been disallowed as an abuse of process are so few in number, it would be dangerous to attempt to define fully what are the circumstances which should lead to a finding of abuse of process. Features tending that way clearly include the fact that the first trial was before the most appropriate tribunal or between the most appropriate parties for the determination of the issue, or that the purpose of the attempt to have it retried is not the genuine purpose of obtaining the relief sought in the second action, but some collateral purpose.
It would in my judgment be a most exceptional course to strike out the whole or part of a defence in a commercial action, or to refuse leave to amend a defence in such an action, simply because the issue raised or sought to be raised had been decided in another commercial action brought against the same defendant by a different plaintiff. The facts that the first action had been fairly conducted and that the issue had been the subject of lengthy evidence and argument could not, in my view, be sufficient in themselves to deprive the defendant of his normal right to raise any issue which he is not estopped from raising.
If further the defendant was at some disadvantage in the earlier proceedings from which he would be free in the later ones, that is a positive reason why he should not be deprived of the opportunity of raising the issue afresh."
"Mr. Goldsmith accepted that the applicant's claim is not a collateral attack on the decision of the tribunal in Thomas v National Coal Board [1987] ICR 757; but he submits that it is analogous to it. He submits that, where sample cases have been chosen so that the tribunal can investigate all the relevant evidence as fully as possible, and findings have been made on that evidence, it is contrary to the interests of justice and public policy to allow those same issues to be litigated again, unless there is fresh evidence which justifies re-opening the issue. I agree; it is no answer to say that, if the applicant's claim fails, the employers can be compensated in costs."
"With all respect to Stephenson L.J., I do not agree that the claim can only be struck out as being an abuse of the process if it is a sham, not honest or bona fide. On the contrary, I prefer the views of the other members of the court that it is dangerous to try and define fully the circumstances which can be regarded as an abuse of the process, though these would undoubtedly include a sham or dishonest attempt to relitigate a matter. Each case must depend upon all the relevant circumstances. In the present case there was a large number of claims which raised similar issues against the same employers. The tribunal went to great length to devise arrangements which would enable the legal representatives of the parties to put forward their best cases so that as many issues of fact as possible could be raised and decided upon after the fullest inquiry and investigation. If the applicant or her advisers wished her case to be one of the sample cases, they could have applied at any time before the hearing for that to be done; she did not do so."
"Thus, it is clear on authority that the court's inherent jurisdiction to prevent abuse of process in civil proceedings extends to cases where, notwithstanding that the doctrines of res judicata and issue estoppel are inapplicable, the circumstances are such that the issue or prosecution of proceedings would be vexatious or oppressive as amounting to an attempt to relitigate a case which has already in substance been disposed of by earlier proceedings – where, to use Lord Diplock's expression, the proceedings amount to a collateral attack on a decision in earlier proceedings. This aspect of the court's inherent jurisdiction to prevent abuses of its process is sometimes referred to as 'the double jeopardy rule'. In my judgment, however, the expression 'double jeopardy rule' is misleading in so far as it implies the existence of some absolute rule: as I see it, the question whether proceedings should be struck out or stayed on grounds of double jeopardy must remain a matter for the discretion of the court, in the light of the circumstances of each particular case. Lord Diplock's disavowal of the word 'discretion' in this context makes it clear that once the court has concluded, after weighing all the relevant circumstances, that a particular proceeding is an abuse of its process, it has a duty to act to prevent that abuse continuing. I would prefer to call the relevant principle the 'collateral attack principle', and I will use that term hereafter in this judgment."
"However, I do not understand Lord Diplock to be saying that the collateral attack principle cannot apply unless the earlier decision has been made by a court of competent jurisdiction. Lord Diplock introduced that passage I have just quoted with the words: 'The abuse of process which the instant case exemplifies ...' As I read that passage from his speech, Lord Diplock is focusing on the particular factors present in Hunter's case: I do not understand him to be delimiting the circumstances in which a collateral attack on an earlier decision may constitute an abuse of process."
"It is furthermore common ground that the limits of that jurisdiction are not clearly defined; that they go beyond circumstances in which the doctrines of res judicata or issue estoppel is clear. The jurisdiction indeed exists if proceedings are being used for some improper or collateral purpose. However, it is not a jurisdiction that will be exercised lightly, and it is not for the court to interfere in the decisions of parties to litigate and bring their proceedings to court unless there is an abuse, that is to say some factor which makes the continuation of the proceedings "manifestly unfair to a party in litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people"."
"The application of the principle to cases of double jeopardy — in which the defendant is at risk of being tried twice for offences arising out of the same facts — is well illustrated by two decisions in the Supreme Court of New South Wales: Cooke v. Purcell (1988) 14 N.S.W.L.R. 51 and Gill v. Walton (1991) 25 N.S.W.L.R. 190. The latter case went, on appeal, to the High Court of Australia, sub nom. Walton v. Gardiner (1993) 177 C.L.R. 378. The judgment of the majority (Mason C.J., Deane and Dawson JJ.) contains the following statement of the law in Australia, at pp. 392–393:
"The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness."
The overriding consideration, as it seems to me, is the need to preserve public confidence in the administration of justice. The court is entitled — indeed bound — to stay the proceedings where to allow them to continue would threaten its own integrity. In the words of Lord Diplock, proceedings should be stayed where to allow them to continue would bring the administration of justice into disrepute among right-thinking people."
"38 In my view these cases establish the following propositions:
a) A collateral attack on an earlier decision of a court of competent jurisdiction may be but is not necessarily an abuse of the process of the court.
b) If the earlier decision is that of a court exercising a criminal jurisdiction then, because of the terms of ss. 11 to 13 Civil Evidence Act 1968, the conviction will be conclusive in the case of later defamation proceedings but will constitute prima facie evidence only in the case of other civil proceedings. (It is not necessary for us to express any view as to whether the evidence to displace such presumption must satisfy the test formulated by Earl Cairns in Phosphate Sewage Co. Ltd v Molleson (1879) 4 App Cas 801, 814, cf the cases referred to in paragraphs 32, 33 and 35 above.)
c) If the earlier decision is that of a court exercising a civil jurisdiction then it is binding on the parties to that action and their privies in any later civil proceedings.
d) If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated or (ii) to permit such relitigation would bring the administration of justice into disrepute."
"As Lord Bingham observed in Johnson v Gore-Wood [2002] 2AC 1 at page 31 C: '… there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party.' It might be fair to say it is harassing for WSP and Aspinwall to have to face a second action; I cannot see that it is unjust when they are facing a claim from Aldi for the first time."
"I agree that the question whether subsequent proceedings amount to an abuse of process is to be determined objectively in the sense that, like the man on the Clapham omnibus, the reference to the right-thinking person is simply a means of describing what is in fact an objective assessment of the position. However, I am unable to accept that in cases where the former decision was made in criminal proceedings it is appropriate simply to compare the particular issues, whether of fact or law, which arise in the subsequent proceedings with those that arose in the former, as Mr. O'Connor suggested. Even in cases where the former decision was made in civil proceedings the approach of the courts is not as mechanistic as that, requiring, as Lord Bingham said in Johnson v Gore Wood, a broad merits-based approach. If the former decision was made in criminal proceedings leading to a conviction, it is proper to focus attention on the question whether the later proceedings, if successful, would in substance undermine the conviction. The differences between civil and criminal proceedings, to which Lord Hoffmann drew attention in Arthur J S Hall & Co v Simons, explain the difference in approach. Accordingly, although I accept that many of the individual issues to which the particulars of claim give rise are different from those which the judge had to decide on the voire dire, I consider that it is necessary to take a broader view of the matter."
"In Hunter the plaintiff was engaged in trying to relitigate in a civil court a factual issue which had already been decided against him in a criminal case in which he had been a party. It involved a collateral attack upon a decision in previous proceedings to which he had been a party, fully represented and with complete control over the evidence he wished to put before the court. The plaintiff had "had a full opportunity of contesting the decision in the court by which it was made": per Lord Diplock at p 541. The present case does not have those features. The Ashmore case is essentially a case of the marshalling of litigation. Where a civil court (or tribunal) is faced with an incident for which a defendant may be liable and which injured a large number of people or some situation where a large number of people similarly placed wish to make a contested claim against another, as was the case with the sex discrimination claim against the British Coal Board being made in the Ashmore case, the court, as a necessary part of the administration of justice, has to be prepared to make orders requiring the interested parties to come forward so that appropriate cases can be selected for trial and the parties can address the court upon whether their case raises any different issues from those selected. Each party has an opportunity to persuade the court that its case requires special treatment and should not follow the result of the selected cases. Any aggrieved party may seek to appeal such a procedural order. Where some interested party has been content not to intervene and awaits the outcome of the substantive trial, he must abide by the result, even if adverse, save possibly for seeking belatedly to intervene in order to support an appeal against the substantive decision. Simply to seek to relitigate the whole thing over again is an abuse of process and will not be allowed, as is more fully explained in the judgment of Stuart-Smith LJ in that case, [1990] 2 QB 338, at 345-355. These are illustrations of the principle of abuse of process. Any such abuse must involve something which amounts to a misuse of the litigational process. Clear cases of litigating without any honest belief in any basis for doing so or litigating without having any legitimate interest in the litigation are simple cases of abuse. Attempts to relitigate issues which have already been the subject of judicial decision may or may not amount to an abuse of process. Ordinarily such situations fall to be governed by the principle of estoppel per rem judicatem or of issue estoppel (admitted not to be applicable in the present case). It will be a rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse."
"For all the above reasons…whilst I do not accept Mr. Sheehan's proposition that the principle of abuse of process by means of collateral attack does not extend beyond a case where at least one party or his privy was party to the previous proceedings giving rise to the judgment which is allegedly under attack, in my judgment the judge was wrong, as a matter of principle, to conclude that the circumstances amounted to an abuse of process involving a collateral attack on the committal judgment… As Lord Hobhouse said in In re Norris, at paragraph 26:
'It will be a rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse.'
Although the judge paid lip service to this principle in his judgment, he did not to my mind provide adequate reasons why the present case was "a rare case". It was unfortunate that he was apparently not referred to In re Norris…"
"To allow a party to rely on closed evidence is to sanction a serious invasion on this important principle. It calls for compelling justification. Where it is justified, the resulting unfairness should be mitigated so as to ensure, so far as possible, that there is equality of arms. Given the disadvantage to which CMPs inevitably expose litigants, the courts should be vigilant to ensure that the procedures do not operate in any way that is more unfair, or exacerbates the inequality between the parties to a greater extent than is necessary."
"The principle in Henderson v Henderson has always been thought to be directed against the abuse of process involved in seeking to raise in subsequent litigation points which could and should have been raised before. There was nothing controversial or new about this notion when it was expressed by Lord Kilbrandon in Yat Tung. The point has been taken up in a large number of subsequent decisions, but for present purposes it is enough to refer to the most important of them, Johnson v Gore-Wood & Co [2002] 2 AC 1, in which the House of Lords considered their effect."
Lord Sumption then cited the passage from the speech of Lord Bingham at 31A-E which I set out at [47] above.
The law on privity of interest and the role of the Special Advocates
"Privity for this purpose is not established merely by having "some interest in the outcome of litigation." So far as they go, I think these authorities go some way towards supporting the contention of Mr. Jacob that the doctrine of privity for these purposes is somewhat narrow, and has to be considered in relation to the fundamental principle nemo debet bis vexari pro eadem causa.
I turn from the negative to the positive. In Zeiss No. 2 [1967] 1 A.C. 853, 911, 912, Lord Reid suggested that if a plaintiff sued X and established some right in that action, a servant or third party employed by X to infringe the right and so raise the whole question again should be regarded as being a privy of X's in subsequent proceedings, for it would be X who would be "the real defendant." Lord Reid agreed with a statement which applied the rules of res judicata to subsequent proceedings brought or defended "by another on his account," that is, on X's account.
This is difficult territory: but I have to do the best I can in the absence of any clear statement of principle. First, I do not think that in the phrase "privity of interest" the word "interest" can be used in the sense of mere curiosity or concern. Many matters that are litigated are of concern to many other persons than the parties to the litigation, in that the result of a case will at least suggest that the position of others in like case is as good or as bad as, or better or worse than, they believed it to be. Furthermore, it is a commonplace for litigation to require decisions to be made about the propriety or otherwise of acts done by those who are not litigants. Many a witness feels aggrieved by a decision in a case to which he is not party without it being suggested that the decision is binding upon him.
Second, it seems to me that the substratum of the doctrine is that a man ought not to be allowed to litigate a second time what has already been decided between himself and the other party to the litigation. This is in the interest both of the successful party and of the public. But I cannot see that this provides any basis for a successful defendant to say that the successful defence is a bar to the plaintiff suing some third party, or for that third party to say that the successful defence prevents the plaintiff from suing him, unless there is a sufficient degree of identity between the successful defendant and the third party. I do not say that one must be the alter ego of the other: but it does seem to me that, having due regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party. It is in that sense that I would regard the phrase "privity of interest." Thus in relation to trust property I think there will normally be a sufficient privity between the trustees and their beneficiaries to make a decision that is binding on the trustees also binding on the beneficiaries, and vice versa.
Third, in the present case, I think that the matter may be tested by a question that I put to Mr. Skone James in opening. Suppose that in the Denne action the plaintiff, Miss Gleeson, had succeeded, instead of failing. Would the decision in that action that Wippell had indirectly copied the Gleeson drawings be binding on Wippell, so that if sued by Miss Gleeson, Wippell would be estopped by the Denne decision from denying liability? Mr. Skone James felt constrained to answer Yes to that question. I say "constrained" because it appears that for privity with a party to the proceedings to take effect, it must take effect whether that party wins or loses. As was said by Buckley J. in Zeiss No. 3 [1970] Ch. 506, 541 (where the question was rather different) 'The relationship cannot be conditional upon the character of the decision.'"
"31 It is not necessary for the purposes of this appeal to seek to define precisely what interest in the subject matter of the previous litigation is required. The sort of interest dismissed by Sir Robert Megarry in Gleeson in his first principle is clearly inadequate. There are passages in the judgment of Aldous L.J. in Kirin-Amgen Inc v Boehringer Mannheim GmbH [1997] FSR 289 which suggest that a legal interest may be necessary in the subject matter of the previous action as opposed to a commercial interest: see pp.307–309. I have not found that a particularly helpful criterion in the present case which is solely concerned with successive revocation actions. At one level Arrow and Resolution had the same legal interest in the revocation of the Patent, but that was a legal interest which they shared with all the world. If Resolution is to be bound, it must I think be possible to identify some more concrete consequence for its business which revocation of the Patent would have achieved. Unless that is so, although it can be said that Resolution could have joined the 2005 proceedings, there is no reason to hold that they should.
32 Drawing this together, in my judgment a court which has the task of assessing whether there is privity of interest between a new party and a party to previous proceedings needs to examine (a) the extent to which the new party had an interest in the subject matter of the previous action; (b) the extent to which the new party can be said to be, in reality, the party to the original proceedings by reason of his relationship with that party, and (c) against this background to ask whether it is just that the new party should be bound by the outcome of the previous litigation."
No abuse of process
"In considering the approach to be taken by this court to the decision of the judge, it was rightly accepted by Aspinwall that the decision to be made is not the exercise of a discretion; WSP were wrong in contending otherwise. It was a decision involving the assessment of a large number of factors to which there can, in such a case, only be one correct answer to whether there is or is not an abuse of process. Nonetheless an appellate court will be reluctant to interfere with the decision of the judge where the decision rests upon balancing such a number of factors; see the discussion in Assicurazzoni Generali v Arab Insurance Group [2002] EWCA Civ 1642); [2003]1 WLR 577 and the cases cited in that decision and Mersey Care NHS Trust v Ackroyd [2007] EWCA Civ 101 at paragraph 35. The types of case where a judge has to balance factors are very varied and the judgments of the courts as to the tests to be applied are expressed in different terms. However, it is sufficient for the purposes of this appeal to state that an appellate court will be reluctant to interfere with the decision of the judge in the judgment he reaches on abuse of process by the balance of the factors; it will generally only interfere where the judge has taken into account immaterial factors, omitted to take account of material factors, erred in principle or come to a conclusion that was impermissible or not open to him."
"The proper method of attacking the decision by Bridge J. in the murder trial that Hunter was not assaulted by the Police before his oral confession was obtained would have been to make the contention that the judge's ruling that the confession was admissible had been erroneous, a ground of his appeal against his conviction to the Criminal Division of the Court of Appeal. This Hunter did not do. Had he or any of his fellow murderers done so, application could have been made on that appeal to tender to the court as "fresh evidence" all material upon which Hunter would now seek to rely in his civil action against the Police for damages for assault, if it were allowed to continue. But since, quite apart from the tenuous character of such evidence, it is not now seriously disputed that it was available to the defendants at the time of the murder trial itself and could have been adduced then had those who were acting for him or any of the other Birmingham Bombers at the trial thought that to do so would help their case, any application for its admission on the appeal to the Court of Appeal (Criminal Division) would have been doomed to failure."
"The decision of their Lordships in Hunter's case, however, was, in my judgment, not that the initiation of such proceedings is necessarily an abuse of process but that it may be. The question whether it is so clearly an abuse of process that the court must, or may, strike out the proceedings before trial must be answered having regard to the evidence before the court on the application to strike out. There are, in short, and at least, exceptions to the principle."
"Since new proceedings are not necessarily an abuse of the process of the court, merely because the court will be required to consider whether a decision against the plaintiff in earlier proceedings would have been made, or made in the same terms and to the same effect, having regard to the new matters and factors to be proved or established by the fresh evidence, it is necessary to consider whether the contention that the plaintiff's solicitors, acting for him in the earlier proceedings, failed in breach of duty to advance an appeal upon a point of law, which would have caused the decision against the plaintiff to be set aside, may also constitute an exception to the principle. It was common ground that, so far as counsel have been able to discover, this point has not before been considered in any reported case in this country. It seems to me to be clear beyond question that such a contention may constitute an exception. Let it be supposed that the plaintiff, having instructed his solicitors to pursue an appeal against the decision of the Crown Court, is deprived of the right to appeal by the defendants' breach of duty. Let it be supposed further that his claim shows that an obvious error of law was made by the Crown Court which, on appeal by case stated, must have resulted in the conviction being set aside. I can see no reason why the court should refuse to entertain such proceedings, and I can see no arguable basis for regarding such proceedings, by reason only of the collateral attack upon the decision of the Crown Court, as an abuse of process. It would, to the contrary, be an abandonment of the duty and of the function of the court to refuse to decide the issues in such proceedings."
"It is evident in civil cases particularly that a party may lack any opportunity to resist a hostile claim, as for example where judgment is entered against him on the ground of procedural default, or may lack a full opportunity, as when summary judgment is given against him. We understand Lord Diplock to have been intending to preserve a party's right to make a collateral attack on a decision made against him in such circumstances."
"The Special Advocates who appeared in SIAC were alive to the concerns about rendition, and considered evidence bearing on the issues. There were "sometimes vigorous" arguments about disclosure in SIAC. However, there were no submissions by the Special Advocates that the Secretary of State had breached the duty of disclosure. They did not make submissions to the effect that the Secretary of State's case was all along predictably hopeless. They did not make submissions to the effect that the Secretary of State, or any other Defendant to this action, acted in bad faith."
Conclusion
Lord Justice Moylan
Sir Stephen Richards