The claimant, who had no connection with the United Kingdom, alleged that he had been captured in Pakistan and arbitrarily detained by the United States for four years in secret detention facilities in six different countries (“the six countries”), including Guantanamo Bay, Cuba, and was subjected to extreme mistreatment and torture. He averred that the United Kingdom intelligence services sent questions to the US intelligence agencies to be used in their interrogations of him for the purpose of attempting to elicit information of interest to them, in the knowledge and with the expectation and/or intention that the Central Intelligence Agency (“CIA”) would subject him to torture and extreme mistreatment at those interrogation sessions, conducted for the specific purpose of attempting to extract information in response to the questions from the intelligence services. The claimant issued proceedings in England for damages for alleged torts committed by the United Kingdom Government, contending that the defendants were vicariously liable to him for the tort of misfeasance in public office, conspiracy to injure, trespass to the person, false imprisonment and negligence. The preliminary issue arose whether, by reference to Part III of the Private International Law (Miscellaneous Provisions) Act 1995, the applicable law in respect of the claim was the law of England and Wales or the laws of the six countries. The claimant contended that the general rule as to the applicable law in section 11(1) of the 1995 Act should be displaced on the basis, inter alia, of the exceptions in section 12 such that the appropriate law for the purposes of his claim was the law of England and Wales. The court determined the preliminary issue in favour of the defendants, holding that, since the elements of the events constituting the tort in question had occurred in different countries, the applicable law under the general rule in section 11 was the law of the countries where the claimant had been when he sustained the injuries and not the law of England and Wales.
On the claimant’s appeal—
Held, appeal allowed. (1) The court had to approach section 12 of the 1995 Act in a structured way. First, it had to identify the factors which connected the tort with the country whose law would be applicable under the general rule (in the present case the laws of the six countries) and assess their significance in connection with the defendant’s alleged wrongful conduct. The court then had to undertake the same exercise for the country whose law was suggested to displace the general rule. Having assessed the significance of the factors connecting the tort with each of the competing forums, the court had to decide whether it was substantially more appropriate for the applicable law to be the law of the other country, thereby displacing the general rule under section 11. In considering that question, the parties’ reasonable expectation as to the law which would have applied was likely to be an important factor. That was a fact specific evaluation, but it was not a typical balancing exercise in which the scales were equally balanced at the outset. Rather, they were heavily weighted in favour of the general rule under section 11, which would only be displaced in a clear case (paras 25, 61, 62).
(2) The judge had made three errors in his approach to section 12 which vitiated his conclusion. Firstly, the judge had not focused on the wrongful conduct allegedly committed by the UK’s intelligence services. Rather than focusing on the alleged tortious conduct of making requests to the CIA in the knowledge or expectation that that would result in the torture or extreme mistreatment of the claimant, the judge had viewed the intelligence services’ conduct as no more than one component “in the overall exercise undertaken by the CIA” or as “only an element of the overall treatment of the claimant by the CIA in the six countries”. Second, the judge had been wrong to discount the reasons advanced by the claimant for saying that the factors connecting the tort with the six countries were of reduced significance. The claimant had no control over his location and in all probability no knowledge of it either. The case was far from the scenarios contemplated by the 1995 Act where a claimant travelled voluntarily to a foreign country, thereby submitting himself to its laws, and suffered personal injuries there. So far as the intelligence services were concerned, the claimant’s location from time to time was irrelevant and may well have been unknown. In such circumstances and with proper regard to the principles on which the 1995 Act was based, the significance of the factors connecting the tort with the six countries was minimal. Finally, the judge’s dismissal of the factors connecting the tort with the UK was largely the result of his view that the intelligence services’ conduct was merely one component “in the overall exercise undertaken by the CIA”. However, the actions taken by the intelligence services were undertaken in the interests of the UK’s national security and the intelligence services were undoubtedly subject to UK criminal and public law. Those were strong connections connecting the tortious conduct with England and Wales. They also reflected the parties’ reasonable expectations. While the claimant himself had no connection with the UK, he could reasonably have expected that the conduct of any country’s intelligence services in relation to him would be governed by the law of the country concerned. The intelligence services would also have reasonably expected that their conduct would be subject to English law. Accordingly, because of the three errors identified, the judge’s comparative exercise had been undertaken on a mistaken basis (paras 36–41, 61, 62).
(3) The judge ought to have concluded that the significance of the factors connecting the torts with the six countries were minimal, while the significance of the factors connecting the torts with England and Wales were very substantial. Once the comparison was approached from the correct perspective, the only possible conclusion, even after giving considerable weight to the general rule in section 11, was that it was substantially more appropriate for the applicable law in this case to be the law of England and Wales rather than the laws of the six countries. That conclusion gave effect to the principles on which the 1995 Act was founded, including the reasonable expectations of the parties (paras 42, 61, 62).
Richard Hermer QC, Ben Jaffey QC and Edward Craven (instructed by Bhatt Murphy) for the claimant.
David Blundell QC, Melanie Cumberland and Andrew Byass (instructed by Treasury Solicitor) for the defendants.