In Al Rawi v Security Service [2010] EWCA Civ 482, [2010] All ER (D) 03 (May) the court considered a preliminary issue in a suit brought by six former detainees against several arms of the UK government.
The claimants brought the action under a number of heads in tort and for breach of statutory duty, alleging that the defendants had contributed to the claimants’ detention, rendition and alleged mistreatment while detained.
Open v closed
The defendants sought to file what was termed an “open defence”. This document omitted materials upon which the defendants sought to rely but which they claimed would cause real harm to the public interest if disclosed. This was construed by the court as a request to run all aspects of the case (the pleadings, disclosure, hearings and so on) with parallel “open” and “closed” elements. A process of this kind is not unfamiliar to the courts, and is commonly referred to as the closed material procedure.
The closed material procedure allows the Crown or emanations of the government
